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Supreme Court of the ACT |
Last Updated: 28 July 2008
[2008] ACTSC 69 (23 JULY 2008)
DEFAMATION - plaintiff former Director of Defence Intelligence Organisation (DIO) - publications in prominent current affairs periodical, The Bulletin - publications related to events arising out of Australian Defence Force involvement in InterFET - quality of intelligence estimates provided by DIO - loss of access in East Timor to one intelligence database for short period of time - redress of grievance lodged by military intelligence officer - investigation into and report upon redress of grievance - imputations in publication that plaintiff failed in duties and abused position in several respects - imputations untrue and defamatory
DEFAMATION - DEFENCES - Qualified privilege - traditional category - publication to wide audience - reciprocal duty or interest - whether special knowledge of official exercise of public powers conferred requisite duty or interest - whether publication of a complete government report privileged - extended category - government and political matters - s 22 Defamation Act 1974 (NSW) - whether defendant's conduct reasonable - whether defendant actuated by malice
Held: Duty or interest capable of founding traditional category of defence not conferred by special knowledge of official exercise of public powers - fair and accurate report a distinct and more specific defence - fair and accurate report not pleaded or made out on facts - traditional category not made out - defendant's conduct not reasonable - actuated by improper motive amounting to malice - extended category of defence not made out - s 22 Defamation Act 1974 (NSW) not made out
DEFAMATION - DEFENCES - Qualified protection - ss 16(1)(c), 16(1)(e), 16(1)(h), 16(2) and 17 Defamation Act 1889 (Qld) - ss 16(1)(c), 16(1)(e), 16(1)(h), 16(2) and 19 Defamation Act 1957 (Tas) - publications not for protection of interests of some other person - publications not for public good - publications not for purpose of giving information - defendant's conduct not reasonable - publications not made in good faith - manner of publication - actuated by improper motive amounting to absence of good faith - wilful blindness amounting to knowledge of falsity
Held: Statutory defences of qualified protection not made out
DEFAMATION - DEFENCES - Fair comment - common law defence of fair comment on a matter of public interest - ss 30, 31, 33, 34 and 35 Defamation Act 1974 (NSW) - s 14 Defamation Act 1889 (Qld) - s 14 Defamation Act 1957 (Tas) - defamatory words statements of fact not comment - in any event facts upon which alleged comment based not established - ss 13(1)(d) and 14 Defamation Act 1889 (Qld) - ss 13(1)(d) and 14 Defamation Act 1957 (Tas) - publications not made in good faith for information of public - defamatory words not fair comment
Held: Defence of fair comment on a matter of public interest not made out - statutory defences of fair comment not made out.
DEFAMATION - DEFENCES - Statutory defence of no negligence - s 134 Civil Law (Wrongs) Act 2002 (ACT) - no reasonable steps taken to ensure accuracy of published matter - no reasonable opportunity to comment on published matter given to plaintiff - absence of negligence not established
Held: Statutory defence of no negligence not made out
DEFAMATION - DAMAGES - compensatory damages - factors to be considered - other recoveries and actions - plaintiff made recovery and brought actions in relation to published matters of similar purport or effect but not in relation to publications sued on in present case - ss 124 and 135 Civil Law (Wrongs) Act 2002 (ACT) - s 48 Defamation Act 1974 (NSW) and provisions to similar effect in each jurisdiction except Australian Capital Territory - whether provisions substantive or procedural - whether s 135 Civil Law (Wrongs) Act 2002 (ACT) requires taking into account other recoveries and actions
Held: Provisions substantive - other recoveries and actions to be taken into account in accordance with provisions in each respective jurisdiction - s 135 Civil Law (Wrongs) Act 2002 (ACT) applies only in relation to other recoveries and actions in respect of actual publications sued upon - plaintiff's other recoveries and actions taken into account in respect of publication in each jurisdiction except Australian Capital Territory
DEFAMATION - DAMAGES - aggravated damages - aggravating features - defendant's wilful blindness as to truth of imputations - failure to make inquiries of plaintiff - defendant's maintenance of defence of justification until shortly before commencement of trial - defendant's maintenance of truth of certain imputations during trial where truth not established - publications attacked characteristics very much part of plaintiff's high reputation - defendant's failure to apologise - exemplary damages - circumstances of case including defendant's conduct not such as to warrant award of exemplary damages
EVIDENCE - admissibility of letter from solicitor for third party - rule against hearsay - exceptions to rule against hearsay - business records - s 69 Evidence Act 1995 (Cth) - contemplation of proceedings - investigations relating or leading to a criminal proceeding
Australian Public Service Code of Conduct
Civil Law (Wrongs) Act 2002 (ACT) ss 122, 134, 135, 136
Civil Liability Act 1936 (SA), s 11
Crimes Act 1914 (Cth), s 3E
Criminal Code (Qld), s 377(5), 377(8)
Defence Force Discipline Act 1982 (Cth)
Defence (Inquiry) Regulations 1985, regs 69(1), 70A, 72
Defamation Act 1974 (NSW), ss 17(c), 22, 46A, 46(3)(b), 48
Defamation Act 1938 (NT), s 10
Defamation Act 1889 (Qld), ss 14, 16(1)(c), (e) and (h), 16(2), 17, 24
Defamation Act 1957 (Tas), ss 16(1)(c), (e) and (h), 16(2), 19, 25
Evidence Act 1995 (Cth), ss 55, 56(1), 69, 135
Intelligence and Security Act 1986 (ACT), s 8
Public Service Act 1999 (Cth), s 15
Wrongs Act 1958 (Vic), s 12
ACCC v Advanced Medical Institute Pty Ltd (No 2) [2005] FCA 1357; (2005) 147 FCR 235
Adam v Ward [1917] AC 309
Ainsworth v Burden [2005] NSWCA 174
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259
Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1968) 117 CLR 185
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183
Bridges v Australian Consolidated Press [1967] 2 NSWR 511
Broome v Cassell and Co [1972] ACT 1027
Calwell v IPEC Australian Limited [1975] HCA 47; (1975) 135 CLR 321
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassel & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 82 ALJR 303
Clark v Ainsworth (1996) 40 NSWLR 463
Clark v Molyneux (1877) 3 QBD 237
Clines v Australian Consolidated Press Ltd (No 3) [1966] 1 NSWR 481
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176
Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102
Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Justin v Associated Newspapers [1967] 1 NSWR 61
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lewis v Daily Telegraph [1964] AC 234
Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503
McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Morosi v Mirror Newspapers (1977) 2 NSWLR 749
Musca v Astle Corporation Pty Ltd (1988) (1988) 80 ALR 254
Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514
Nye v State of New South Wales [2002] NSWSC 1268; (2002) 134 A Crim R 245
Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; (2006) 68 NSWLR 150
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309
Queensland Newspaper Pty Ltd v Baker [1937] St.R.Qd. 153
R v Crabbe [1985] HCA 22; (1985) 156 CLR 464
Random House Australia Pty Ltd v Abbott [1999] FCA 1538; (1999) 94 FCR 296
Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Rookes v Barnard [1964] UKHL 1; [1964] AC 1129
Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431
Sims v Wran [1984] 1 NSWLR 317
Speight v Gosnay (1891) 60 LJQB 231
Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211
Stevens v Head [1993] HCA 19; (1993) 176 CLR 433
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 634
Toogood v Spyring [1834] EngR 363; (1834) 1 Cr M & R 181; 149 ER 1044
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Uren v John Fairfax and Sons Ltd [1966] HCA 40; (1966) 117 CLR 118
The New Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1993)
Salmond & Heuston in the Law of Torts (20th ed, RFV Heuston and R A Buckley, 1992)
No. SC 578 of 2004
Judge: Besanko J
Supreme Court of the ACT
Date: 23 July 2008
IN THE SUPREME COURT OF THE )
) No. SC 578 of 2004
AUSTRALIAN CAPITAL TERRITORY )
FRANK LEWINCAMP
ACP MAGAZINES LIMITED
Judge: Besanko J
Date: 23 July 2008
Place: Adelaide (via video link with Canberra)
THE COURT ORDERS THAT:
1. There be judgment for the plaintiff against the defendant in the sum of $375,000.
2. The parties have leave to make submissions as to other orders including orders as to interest, vindication of the plaintiff's reputation and costs.
1. I INTRODUCTION
1. The plaintiff, Mr Frank Lewincamp, has brought an action against ACP Magazines Limited claiming that he was defamed in 2004 in two publications made by that company. He claims damages, including aggravated and exemplary damages, and other relief. The action was commenced against ACP Publishing Pty Limited and after trial the company changed its name to ACP Magazines Limited.
2. In 2004 the plaintiff was a senior Commonwealth public servant and he held the position of the Director of the Defence Intelligence Organisation ("DIO"). The defendant is an incorporated body and in 2004 it was the publisher of a national weekly news magazine called The Bulletin. On 14 April 2004 the defendant published an edition of The Bulletin which was dated 20 April 2004 and it is alleged by the plaintiff that in that edition the defendant made defamatory statements of and concerning him. The defamatory matter upon which the plaintiff relies is identified later in these reasons. I will refer to this edition as the first publication. On 21 April 2004 the defendant published an edition of The Bulletin which was dated 27 April 2004 and it is alleged by the plaintiff that in that edition the defendant also made defamatory statements of and concerning him. The defamatory matter upon which the plaintiff relies is identified later in these reasons. I will refer to this edition as the second publication. Both editions were distributed and sold in each State and Territory of the Commonwealth of Australia.
3. The alleged defamatory matter in the first publication appears on the front cover, in the contents page, in an article with accompanying visual images entitled Rotten to the Corps (pages 30 to 36 of the first publication), and in a document entitled The Toohey Inquiry - the Restricted Report. The plaintiff claims that in their ordinary and natural meaning the words in that matter were defamatory of him and he alleges that seven imputations arose. He has particularised the imputations as follows:
(a) [the plaintiff] abused his position as Director of the [DIO], by allowing a "pro-Jakarta lobby" within DIO to distort intelligence assessments so as to be compatible with the policy of the government of the day, instead of ensuring that DIO fulfilled its duty to protect Australia's national interest by providing independent objective intelligence to the Australian government.(b) [the plaintiff] allowed a "pro-Jakarta lobby" within the DIO to distort intelligence assessments so as to be compatible with the policy of the government of the day, instead of ensuring that DIO fulfilled its duty to protect Australia's national interest by providing independent objective intelligence to the Australian government.
(c) [the plaintiff] betrayed his duty as Director of the DIO, to protect the Australian national interest, by allowing intelligence assessments concerning atrocities and terrorist activities committed by the Indonesian military in East Timor to be distorted so as to be compatible with the policy (accommodating of the Indonesian government) of the Australian government of the day.
(d) [the plaintiff] abused his position as Director of the DIO in that, out of mere personal frustration with the activities of Lt Col Lance Collins ("Collins") in East Timor, he deliberately caused the flow of intelligence to Australian soldiers in East Timor during the Interfet military operation to be suspended for 24 hours, thereby needlessly endangering the lives of those soldiers.
(e) [the plaintiff] abused his position as Director of the DIO in that, out of mere personal frustration with the activities of Collins in East Timor, he deliberately caused the flow of intelligence to Australian soldiers in East Timor during the Interfet military operation to be suspended for 24 hours.
(f) [the plaintiff] abused his position as Director of DIO in that, out of mere personal frustration with the activities of Collins in East Timor, he tried to prevent Collins from continuing to raise constructive and accurate criticism of DIO's assessments.
(g) [the plaintiff] abused his position as Director of DIO in that, merely because of his dislike of and frustration with a leading intelligence analyst namely Collins, he participated in the passing of Collins' details to the Australian Federal Police, which resulted in Collins being unnecessarily named on a widely publicised AFP search warrant, thereby contributing to ruining Collins' career.
In broad terms, these imputations may be characterised as imputations concerning the distortion of intelligence assessments ((a), (b) and (c)), imputations concerning a suspension of the flow of intelligence (otherwise referred to in the evidence as the cut to intelligence) ((d) and (e)), imputations concerning an attempt to prevent criticism by Lt-Col Collins ((f)) and an imputation concerning Lt-Col Collins' name appearing on an Australian Federal Police ("AFP") search warrant ((g)).
4. The alleged defamatory matter in the second publication appears on the front cover, in the contents page, and in an article with accompanying visual images entitled Justice under Fire (pages 22 to 23 of the second publication). The plaintiff claims that in their ordinary and natural meaning the words in that matter were defamatory of him and he alleges that one imputation arose. He has particularised that imputation as follows:
(a) [The plaintiff] abused his position as Director of the DIO in that, because of a mere personal dispute with Collins, he deliberately caused the flow of intelligence to East Timor during the Interfet operation to be suspended for 24 hours, thereby needlessly endangering the lives of Australian soldiers in East Timor.
This imputation is similar to the imputations concerning a suspension of the flow of intelligence in the first publication (that is, (d) and (e)).
5. At all relevant times, Lt-Col Lance Collins (who is referred to in the above imputations) was a member of the intelligence corps of the Australian Army.
6. The factual background in which the issues must be considered was established by a number of documents tendered by the respective parties and by the oral evidence which was given. A number of facts were not disputed. Where there was a dispute I will indicate the nature of the dispute and how I have resolved it.
II THE FACTUAL BACKGROUND
7. The plaintiff was born on 14 March 1953. He attended the University of Tasmania and, in 1977, he obtained a Bachelor of Arts degree with first-class honours. He was active in university life and he was the recipient of a number of prizes. After he graduated from university, the plaintiff worked as a part-time tutor in politics and philosophy.
8. In 1984 the plaintiff commenced work in the Commonwealth Public Service when he joined the Defence Department as a graduate recruit. From July 1999 to January 2005, the plaintiff was the Director of the DIO. From February 2005 to July 2007 he was the Chief Operating Officer of the Defence Material Organisation and since 30 July 2007, he has been the Head of Defence Business Improvement.
9. It is necessary to describe the functions of the DIO, albeit in general terms. The DIO is an all-source assessment agency working within the Department of Defence. Its principal responsibility is to provide intelligence at the strategic level to senior defence personnel and Ministers in Canberra and assessments for the use of the Australian Defence Force and the Defence Organisation wherever they may be. In general terms, it is not a collection agency; it obtains information from other sources and analyses, checks and processes that information. It prepares assessments, reports and analysis and that material was referred to in the evidence as the "product" of the DIO. I will also use that description.
10. DIO product can be used at various "levels". The levels referred to in the evidence were the strategic level, the operational level and the tactical level. A particular piece of intelligence might be used at all levels. Speaking generally, the strategic level is the broadest level and might link intelligence with the plans and intentions of countries and matters of that nature. The next level is the operational level where the principal customer is the operational commander and as the plaintiff said, "their intent is to support his immediate intelligence needs and [the way] the system works [is] that the people operating at that level operate within the broad strategic assessments and intelligence provided by DIO and they provide more immediate intelligence". The plaintiff gave various examples including the level of capability of different units, their level of staffing and morale, and training, or their estimated capacity in different types of operations. The final level is the tactical level and that involves intelligence which is more immediate and the plaintiff described this level as involving issues such as where units are located, what they are likely to be doing, and "what's the immediate situation, if you like, on the ground".
11. DIO considers only foreign intelligence or intelligence involving other countries.
12. The plaintiff said that there were various ways of classifying information and they ranged in ascending order of secrecy from restricted to confidential, secret and top-secret. At all material times, the plaintiff was cleared to top-secret level.
13. The plaintiff became the Director of DIO after he had been asked if he would take the position. Prior to his appointment as the Director of DIO he was the Chief Financial Officer of the Resources and Financial Programs, Division of Defence.
14. On 30 August 1999 a referendum was held in East Timor and, on or about 20 September 1999, Australian troops were deployed to East Timor as part of a peace-keeping operation called InterFET. The Australian troops in East Timor were provided with a range of intelligence facilities and the plaintiff described those facilities as they were in December 1999. A good deal of evidence was given about one particular database on one of the intelligence support systems. The name of the database and the name of the intelligence support system were not referred to in the evidence because of considerations relevant to national security. I suggested to the parties that the intelligence support system be referred to as "system A" and the database on that system be referred to as "database X". That suggestion was adopted by the parties. System A and database X were maintained by the DIO and developed for the use of the DIO analysts. Except where it is necessary to be more specific, I will refer to database X on system A as "the database".
15. The plaintiff said that prior to December 1999 he understood that the database was available to the Australian Theatre in Sydney and to the Deployable Joint Force Headquarters in Brisbane. It seems it was made available to the deployed forces in East Timor without any consultation with DIO.
16. The actions of Lt-Col Collins are important to an understanding of the issues in this case. To explain his role and its relevance to the events as they transpired it is necessary to start with an event in August 1997. On 21 August 1997 Lt-Col Collins wrote a brief entitled Brief for COMAST: Indonesian Intelligence Collection against the ADF. Like a number of documents tendered in evidence in this case, substantial parts of the document had been redacted because of considerations relevant to national security. The aim of the brief was said to be to discuss the threat posed to the ADF security by the Indonesian intelligence services. In the course of the discussion in the brief Lt-Col Collins identified what he called faults in intelligence organisations and he referred to organisational incompetence. In that context he made the following statement:
While there is not time here to go into this in detail, Commanders might note that there is evidence that Desk level advice on Indonesia is sometimes given a pro-Indonesian bias.
17. On 8 July 1998 Lt-Col Collins, as an "Estimate Team Leader", prepared for COMAST an estimate entitled Intelligence Estimate on East Timor (Draft). The estimate is 31 pages in length and a number of passages in it have been redacted. The purpose of the estimate is said to be "to examine the rapidly changing circumstances relative to [East Timor] promote HQAST situational awareness". The estimate contained a discussion of circumstances in Indonesia including changes in the Indonesian government and a discussion of international considerations including the attitude to East Timor of the United States of America and Portugal, respectively. The estimate contained a reference to resolutions of the United Nations and international law and a discussion of the advantages for Indonesia in preserving its territorial integrity by denying independence to East Timor. The estimate contained an assessment of potential outcomes and it identified what it called "potential scenarios". In that context four scenarios were identified.
18. The estimate was given to the DIO in July 1998. This was well before the plaintiff joined the organisation. On or about 14 July 1998, an officer within the DIO, a Mr Ashton Robinson, who is described as "Director, Indonesia", prepared a minute and annexure which dealt with the estimate. The annexure contained responses to specific questions raised in the estimate. However, Mr Robinson stated that the DIO was not able to respond appropriately to the draft document by the close of business on 14 July 1998 given the short "lead time". Mr Robinson stated that if a formal review of the estimate was required, a lead-time of one week was the minimum that the DIO believed would be required. Mr Robinson stated that "[d]ue to the comments on policy matters and implied recommendations on policy options, the paper was formally referred to IP Division for comment with a response requested by COB Friday 17 July 1998".
19. It is clear from Mr Robinson's response that the DIO did not carry out a formal review of the estimate and that the estimate was given to the International Policy Division. On 20 July 1998 a Mr M Scrafton responded on behalf of that Division. In the minute he prepared he said that the DIO had passed a copy of the document to him. He said that the estimate had serious flaws. In particular, he said the following:
2. While I understand that the purpose of the Estimate is to raise HQAST's awareness of the situation in East Timor, I have two major concerns with the document: The first is that the document focuses purely at the strategic level, and raises issues which are outside the scope of an operational level intelligence assessment. I believe that ASTJIC should limit itself to setting out the operational implications of developments in East Timor and the impact on ADF preparedness and planning, where there is a stated strategic level requirement. Not only does the paper not do this, but the need has not been articulated.3. Secondly, and of more concern to me, the estimate fails to understand some of the fundamental drivers behind our strategic relationship with Indonesia and contains several assessments about Australian Foreign and Defence policy regarding the political status of East Timor.
20. On 12 February 1999 Lt-Col Collins sent an electronic message to another person, whose identity is not material, and in that message he said:
Attached are documents prepared at HQAST last year on the East Timor (EM) question. I understand they are still working on it. I got into strife (water off a duck's back) for making uncomplimentary statements about our polics in the Jul ed, or an earlier version. Some people are very sensitive!
21. On 12 May 1999 Lt-Col Collins sent an electronic message to about 34 persons stating that a DIO assessment was "too timid" and attaching certain notes which he had prepared. The notes were said to be draft notes as at 7 May 1999 and the title of the notes was OP [... (a word or words edited out)] Notes on Information Operations. Again, long passages in the document have been redacted. However, at one point Lt-Col Collins referred to what he called the "Jakarta lobby", which he describes in the following terms:
The Jakarta Lobby is well covered in the writings of a number of prominent academics and journalists. It is an informal network of people in politics, business, the media, government departments, Defence, and the military who consistently push a pro-Indonesian agenda or interpretation of events. Many have invested significant intellectual, career, emotional or financial capital in their commitment to supporting [Indonesia]. This reached its highest expression in the secret defence treaty and the overwhelming prominence given the "bilateral relationship". The Jakarta Lobby has achieved pre-eminence in the official Australian decision making process relative to [Indonesia]. [Footnotes omitted.]
22. At about this time, Lt-Col Collins was discussing his views about Indonesia and the DIO with another army officer, Capt Clinton Fernandes. On 19 May 1999 Lt-Col Collins sent an electronic message to Capt Fernandes which referred to an article which had appeared in the Time magazine. In the course of his message he made the following observations:
That explains alot [sic] - and DIO were too dopey to be awake up to it ... The irony of it being in the issue covering Suharto would be lost on his loyal or/and unwitting henchmen in Canberra.
Lt-Col Collins wrote to Capt Fernandes again on 8 July 1999.
23. On 29 July 1999 Lt-Col Collins again sent an electronic message to a number of persons commenting on a DIO assessment. The message has been redacted substantially. He stated that the DIO assessment of East Timor was "surprising in what it [did] not say".
24. On 27 July 1999 the plaintiff took up his position as Director of DIO. At about this time, Mr Robinson who, as I have previously said, was described as "Director, Indonesia", spoke to the plaintiff and showed him some of Lt-Col Collins' commentaries on DIO product. The plaintiff told Mr Robinson to contact Lt-Col Collins and advise him that he was not proceeding in the way he should and that he should contact the DIO if he had suggestions or comments. On 29 July 1999 Mr Robinson, Director, Indonesia, wrote to Lt-Col Collins and said, among other things:
Lance,I am finding your posted-to-all-the-world commentaries on DIO product tiresome. I note that you have never raised any of your concerns directly with me or any of my analysts.
If you had, you would find many of the points you raise agreed with (repeat, agreed with) and are covered in product you are plainly not seeing.
25. On 19 August 1999 the plaintiff replied to a message from Mr Paul Varsanyi, who was an officer within the DIO about what was said to be Lt-Col Collins' "indiscretions". He advised him that he had spoken to Col Mike Norris about Lt-Col Collins' method of operation and that Col Norris had agreed to speak to Lt-Col Collins.
26. On 10 September 1999 Lt-Col Collins prepared a paper entitled "Beyond Credulity: Strategic Intelligence - the Intellectual Basis of a Strategic Reverse". The aim of the paper was said to be to analyse a few of the assessments of the DIO's Indonesian section in an attempt to evaluate their accuracy. It was said in the paper that much of its contents was drawn from a paper written by Capt Fernandes in July 1999. The paper contained a statement that by 9 September 1999 Australia's apparent strategy for East Timor was "in collapse" along with that of the United Nations. Lt-Col Collins expressed the opinion that the DIO's Indonesian section had been "notoriously wrong at predicting vital events". He expressed the opinion that the DIO's Indonesian section produced intelligence by narrative based on what was said or done. He expressed the opinion that the intelligence was "notoriously vulnerable to mis-information or being led along by any coherent strategy relying on the indirect approach including deception". He expressed the opinion that the DIO's Indonesian section was particularly hostile to criticism. He gave examples of what he said were analytical mistakes. In his conclusions Lt-Col Collins stated:
This short paper, there is simply not time for a more exhaustive analysis here, highlights very serious deficiences [sic] in the assessment of DIO's ID section ... More serious still is the obviously orchestrated attempt to muffle dissenting voices in the intelligence community.
27. The plaintiff saw this paper in the latter half of 1999 and, although he could not be certain, he thought that he did so before Australian troops were deployed to East Timor on 20 September 1999.
28. On 16 September 1999 Lt-Col Collins sent an electronic message to another person containing criticisms of the work of the DIO.
29. As I have said, Australian troops were deployed to East Timor in September 1999. At about that time, the defendant published two articles in its magazine which were written by Mr John Lyons and which were highly critical of the Australian Government and its relations with the Indonesian Government and in particular in relation to events which occurred in East Timor. It is said in the articles that there was evidence that the Indonesian military was running the "feared" militia. The articles are critical of the Australian Government's attitude to peacekeepers in East Timor and its failure to confront the Indonesian Government.
30. The edition containing the first of the two articles was published on 6 October 1999 and was dated 12 October 1999. The article by Mr Lyons was entitled The Secret Timor Dossier. It is clear that DIO product had been leaked and was in the possession of Mr Lyons. There were direct quotes from the material. For example,
On March 4, a DIO assessment is grim: `ABRI in East Timor are clearly protecting, and in some instances operating with, militants who have threatened Australian lives ... ABRI could apprehend or easily control pro-Indonesia militants but has chosen not to ... [Wiranto] is at least turning a blind eye."
31. The edition containing the second of these articles was published on 24 November 1999 and was dated 30 November 1999. In addition to Mr Lyons' article entitled The Timor Truth Gap there is a note from the Editor-in-chief, Mr Max Walsh. The Australian Government and, in particular, certain Ministers of the Government are criticised for not being truthful to the Australian people in that (so it was said) they did not disclose the truth about events in East Timor to the Australian people. The article represented that the truth was set out in, among other sources of information, DIO product. The points made in the first article were made even more forcefully by both Mr Walsh and Mr Lyons in his second article. For example, Mr Walsh said:
Our National Affairs Editor John Lyons reports on the content of briefing papers prepared for the senior levels of government by the Defence Intelligence Organisation (DIO). The normally very limited circulation of these documents as well as their source, means that they are couched in direct, even blunt, terms. There is no diplomatic obfuscation....
The DIO reports leave no question that the violence that occurred in East Timor was not only condoned but also orchestrated by the Indonesian military. Furthermore, DIO identifies the former commander-in-chief General Wiranto as the ringmaster.
...
Significantly, the DIO analysis concludes that Wiranto's actions in East Timor were conceived as part of a wider ranging and more extended strategy that would see him emerge as the political leader of Indonesia.
Of course this is speculation. It is quite legitimate for DIO to do this, in fact, central to its charter. Furthermore, the plausibility of what DIO is suggesting is reinforced by its track record during the East Timor crisis.
As Lyons points out, Foreign Minister Alexander Downer's public statements concerning the nature of the violence in East Timor were not consistent with what the government was being told by DIO.
The minister's statements have in fact left the impression that Australia suffered from a failure at the military intelligence level. Any reading of Lyons' article will confirm that that was not the case.
However, the implications of the gap between what the government knew and what it told the electorate raise even more serious and difficult issues as we go forward.
32. Mr Lyons' article was to similar effect as his first article. The Australian Government and its Ministers were criticised for not being frank with the Australian people. It was said that they had not passed on to the Australian people accurate information it had from a range of sources including leaked DIO product. In addition to the DIO assessment dated 4 March 1999 referred to in the first article, there was reference to DIO assessments dated 6 January, 3 September, 4 September, mid-September and mid-October 1999 and some of these were quoted at considerable length. In fact the plaintiff said in his evidence that he recognised an assessment quoted in the article as one he wrote or edited.
33. As will become clear, the two articles published in 1999 and their contents are relevant to the defendant's state of mind at the time of the first and second publications in 2004. Mr Lyons won a Walkley Award in 1999 for articles he wrote in the defendant's magazine, including one or both of the articles referred to above.
34. In the latter half of 1999 the plaintiff was irritated by the fact that Lt-Col Collins was conveying his criticisms of DIO product to a range of people outside the DIO.
35. Lt-Col Collins was part of the InterFET operation and he was in the intelligence section. On 20 December 1999 the InterFET operation lost its access to the database. Access was regained the following day. The defendant challenged the version of events on this topic. I will deal with those challenges below (at [123]-[124]). For present purposes, it is sufficient for me to say that I accept the plaintiff's version of events and that version is as follows. The plaintiff, as the Director of DIO, was informed of the loss of access to the database on the morning of 21 December 1999. That occurred during a meeting with other management officers of the DIO, being the Deputy Director of DIO (Dr D Kean), one Col S Meekin and one of Col Meekin's staff, Mr Ian Bowen. Prior to the meeting on 21 December 1999, the plaintiff did not direct or authorise a suspension of access; in fact, he was not aware of the fact that the InterFET operation had access to the database. At the meeting on 21 December 1999 the plaintiff was told that access to the database had been lost for technical reasons. He was concerned about the recent leaks of DIO product, but received strong advice from Dr Kean and Col Meekin that access should be restored as soon as possible. The plaintiff asked whether access could be restored on a restricted basis, that is to say, restricted to those who needed to examine DIO product. He asked Col Meekin to contact Lt-Col Collins and advise him that the suggestion made in one electronic message that the Director had ordered access to be cut was wrong and that he, the Director, was tired of Lt-Col Collins reporting on matters beyond his area of employment. Later that day after the plaintiff had been advised that it was not possible, at least in the short term, for access to the database to be restored on a restricted basis, access to the database by the InterFET operation was restored.
36. On 21 December 1999 Col Meekin prepared a draft memorandum to Lt-Col Collins in which he stated that the Director of DIO had not directed the removal of the feed although he was concerned about the scope and level of reporting and assessment being produced by Lt-Col Collins and his staff on the events that were outside the InterFET area of operation. He set out certain conditions for the restoration of the feed. This memorandum was not sent because the plaintiff was not happy with it and he prepared his own memorandum. The plaintiff's memorandum, which is dated 22 December 1999, was sent to Lt-Col Collins and a copy of it was sent to then Maj-Gen Cosgrove. In the memorandum the plaintiff stated that full service to the database had been restored. He stated that although he did not direct the removal of access, he did authorise a short delay in its restoration "until certain issues had been clarified". Those issues concerned access on a need-to-know basis and protection of the material accessed and respective responsibilities for the production of intelligence. Those issues were then discussed in detail in the memorandum.
37. On 12 September 2000 a magistrate in and for the Australian Capital Territory issued a search warrant under s 3E of the Crimes Act 1914 (Cth) ("Crimes Act"). A constable within the meaning of the Crimes Act was named as the executing officer in relation to the warrant. The warrant authorised the executing officer to enter and search premises identified in the warrant and to seize any evidential material to which the warrant related. The premises identified in the warrant were those of Capt Fernandes. The evidential material which was the subject of the warrant needed to satisfy three conditions and those conditions related to the nature of the things, to whom or what they related, and their potential to give rise to reasonable grounds for suspecting that they would afford evidence as to the commission of certain offences against the laws of the Commonwealth. Those offences were alleged to be offences against ss 70, 79(3) and 79(6) of the Crimes Act. Lt-Col Collins' name appeared on the list of persons or bodies to which the things may relate. He and other individuals were named on the list as were a number of organisations including the Australian Defence Force, the Department of Defence, the Defence Signals Directorate, and media publications such as The Bulletin magazine and The Age newspaper.
38. The execution of the search warrant gave rise to publicity, including an article in The Sydney Morning Herald on 21 September 2000. The article mentioned Lt-Col Collins and the fact that he was named in the warrant. It contained the following passage:
A number of other intelligence officers were also mentioned on the warrant, including a highly regarded expert on East Timor and Indonesia, Lieutenant-Colonel Lance Collins. There has been no suggestion that he is a suspect in the investigation.The Herald has learnt that he was the senior intelligence officer on the staff of Lieutenant-General Peter Cosgrove last year at the Joint Deployable Force Headquarters in Brisbane. This unit took command of the Australian-led peacekeeping mission to East Timor in September.
Early last year, Colonel Collins was closely involved in the intelligence assessments that described the Indonesian military's role in co-ordinating the militia violence and correctly predicted a bloodbath if the East Timorese voted for independence.
He had maintained close links with East Timorese groups and apparently had developed reliable sources on developments in East Timor.
"He is a very, very capable operator at the working level," a senior officer said yesterday.
"Defence sources said General Cosgrove was so impressed with the briefings he was given about the situation in East Timor early last year that he sent Colonel Collins to Sydney to brief the then Land Commander, Major-General John Hartley".
39. On 6 December 2000 Lt-Col Collins wrote a letter to the Minister for Defence in the Australian Government. In his letter, Lt-Col Collins set out certain concerns he had about the Australian defence intelligence system, and he asked the Minister to direct or request the Inspector-General of Intelligence and Security to investigate the matters he identified in his letter. They may be summarised as follows:
1. The DIO and the International Policy Division "quashed" the warnings of a problem developing in East Timor in Lt-Col Collins' estimate dated July 1998.
2. In August or September 1998 a senior Australian Defence Force officer said to Lt-Col Collins that "we've got a plan with the Indonesians to keep everybody else out of East Timor".
3. There was inappropriate conduct by the Defence Security Branch in relation to the Merv Jenkins' affair.
4. Throughout 1999, officers of the DIO "maintained a line of assessment that was relatively soft on Indonesians and continued the suppression of dissenting views within the Australian intelligence community".
5. The DIO had cut access to a particular database by InterFET forces in Dili.
6. There was evidence that the DIO continued to suppress dissenting views and Lt-Col Collins had been told by two officers on his return from East Timor in March 2000 that he should "watch his back".
40. On 20 December 2000 the Minister for Defence asked Mr WJ Blick, Inspector-General of Intelligence and Security, to investigate the issues and concerns raised by Lt-Col Collins pursuant to s 8 of the Inspector-General of Intelligence and Security Act 1986 (Cth). I will refer to the inquiry subsequently conducted by Mr Blick as the "Blick inquiry" and the report prepared by Mr Blick as the "Blick report".
41. On 4 May 2001 the plaintiff made a written representation to Mr Blick in relation to the issues and concerns raised by Lt-Col Collins. The plaintiff said that DIO had done nothing to "quash" the views set out in Lt-Col Collins' estimate dated July 1998. The plaintiff denied that DIO's assessments of the circumstances in Indonesia were unbalanced. The plaintiff said that the cut to the database did not occur as a result of any instruction from him although he did organise a short delay in its resumption as this provided DIO with an opportunity to seek systems changes to address security concerns. The plaintiff criticised Lt-Col Collins' style of operation and said that there were a number of instances of "divisive and unprofessional conduct".
42. On 30 August 2001 Lt-Col Collins wrote to the Minister for Defence complaining about the time it was taking for the matters he had raised to be dealt with. He asked that the issues he had raised be referred to what he called "a properly constituted Parliamentary Inquiry".
43. The plaintiff had directed Mr Keith Winsor, an officer within the DIO, to deal with the matters raised by the Blick Inquiry. In other words, for the purposes of the Blick Inquiry, Mr Winsor was the contact officer within the DIO. Mr Winsor investigated the cut to the database and the reasons for it. There was a meeting between the plaintiff, Mr Winsor and a Mr Steve Hansson on 5 December 2001. Mr Hansson was the senior IT person at the DIO at the relevant time. According to Mr Winsor, at the meeting Mr Hansson said the following:
Steve was saying "I think we cut it" and then Frank was saying "well that's not what you told me at the time, ... are you sure of this?" He said "Oh". He tended to waver on whether it was or was not ...
44. The plaintiff cannot remember Mr Hansson saying the above but in his evidence he said that he was prepared to accept that he did. The plaintiff also accepts that he should have told Mr Blick of this statement by Mr Hansson, but he does not accept that as a result of Mr Hansson's statement he (the plaintiff) should have conducted his own inquiries as to the reasons for the loss of access, bearing in mind that Mr Blick was carrying out an inquiry. For reasons I will give, I accept the plaintiff's evidence about the loss of access to the database and I reject the suggestion made by the defendant that there was a "cover-up" by DIO and a deliberate decision by the organisation not to tell Mr Blick the truth.
45. A number of DIO officers, including the plaintiff and Mr Hansson, completed statutory declarations and they were provided to the Blick inquiry. In his statutory declaration Mr Hansson stated that the failure of access resulted from technical problems.
46. Mr Winsor provided a report to Mr Blick on 10 January 2002. The report was seen by the plaintiff and approved by him. Mr Winsor's report contained the following conclusion:
I can report that I have found no evidence to support the allegation (or speculation) that the failure [...] was the result of a policy decision taken by DIO management or any indication that CTF 645 suffered a real denial of intelligence as a result of the [...] outage. I could not find any evidence to support unilateral action taken by DIOIT staff to cut support. The provision [...] to CTF 645 was not as critical as Lt-Col Collins claims given the redundancies that were in place to ensure CTF 645 had all necessary intelligence support as stipulated in the ISP.
(The words in brackets have been redacted from the report.)
47. As part of his inquiry Mr Blick organised a meeting between himself, Lt-Col Collins and the plaintiff and such a meeting was held on 12 September 2002. Mr Neville Bryan was also present and he took notes of the meeting. Subsequently, those notes were put into typewritten form.
48. Lt-Col Collins did not consider that the Blick inquiry was proceeding in the way in which it should and, on 1 May 2003, he lodged an application for redress of grievances with his commanding officer, Lt-Col B Carey. The grievances were outlined in an attached letter dated 30 April 2003. Lt-Col Collins stated that he had received a very favourable report on his performance by the then Maj-Gen Cosgrove. However, he said on his return to Australia from East Timor in about February 2000 he was warned that the Director of DIO and others were out to get him and that was in response to the estimate he wrote in July 1998 and his subsequent comments on the "efficacy" of strategic intelligence. He stated that what occurred was "organisational reaction against criticism, which took the form of a personal attack on [him] rather than an objective response to what [he] was saying". Lt-Col Collins referred to the Blick inquiry. He claimed that his lawyer was barred from the meeting between the plaintiff and himself and that Mr Blick's account of the meeting was deficient. He claimed that the plaintiff made a comment at the meeting which was proof of the plaintiff's malice towards him. He claimed that the plaintiff's statements at the meeting confirmed that there was "an abuse of power by senior defence personnel adversely directed at [him]". Lt-Col Collins claimed that the campaign against him included the fact that he was named in the search warrant issued in 2000 and the fact that what he interpreted as unfavourable comments were made about him in his performance review for 2000. Lt-Col Collins claimed that he was poorly treated after he returned from East Timor and, more specifically, in relation to the search warrant. He claimed that he was denied procedural fairness in relation to the search warrant, that the Army did not advise him of the warrant after it had been made public and that he was not warned of the imminent media coverage. He was not given any personal support, nor was any support offered to his wife. He claimed that the Army had done nothing to clarify his position in relation to the search warrant. In addition, he claimed he had not received any performance reports for the years 2001 and 2002.
49. On 14 May 2003 Lt-Col Carey, as commanding officer, appointed Capt Martin John Toohey RANR as the person "to investigate and report into" Lt-Col Collins' application for redress of grievance. In doing that Lt-Col Carey was exercising the power in reg 70A of the Defence (Inquiry) Regulations 1985. The instrument of appointment refers to the matters which were to be the subject of the investigation and identified areas in respect of which the investigating officer was asked to make recommendations. The regulations specifically provided that the inquiry to be conducted by Capt Toohey was not to be conducted in public and he was not to take evidence on oath or affirmation: regs 72 and 73. As part of his investigation Capt Toohey conducted a number of interviews including interviews with Lt-Col Collins (14 May 2003), Mr Blick (30 May 2003), Gen Cosgrove (11 June 2003), and the plaintiff (13 June 2003) and each of the transcripts of those interviews is marked "Transcript-in-Confidence".
50. In May 2003, Mr Blick was finalising his investigation and he sent a draft of his report to the plaintiff and asked the plaintiff for his comments. The plaintiff provided his comments in a letter dated 28 May 2003. Mr Blick then provided his final report which is dated May 2003. Mr Blick rejected the contention that DIO quashed or attempted to quash Lt-Col Collins' assessment. Mr Blick reviewed DIO product in relation to East Timor for the period from mid-1998 to late 1999. He rejected the contention that the assessments revealed an institutional bias of the nature alleged by Lt-Col Collins. As far as the loss of access to the database was concerned, Mr Blick concluded that there was no policy decision to withdraw access.
51. On 7 September 2003 Capt Toohey delivered his report to Lt-Col B Carey. I will refer to the report as the Toohey report. Capt Toohey stated that for the purposes of the investigation he had interviewed 22 uniformed and defence civilian officers and he stated that he had the following documents:
LTCOL L Collins letter to the Hon Peter Reith dated 30 August 2001Senator the Hon Robert Hill letter dated 22 July covering the Inquiry into Concerns raised about DIO by LTCOL L Collins
Search Warrant issued within the ambit of the Crimes Act (Com) 1914 s 3E
Supplementary Statement of CAPT C Fernandes dated 20 July 2003
Extract from Hansard - Senate Legal and Constitutional Committee, 22 Nov 2000, pages 89 to 98 incl
Extract from Hansard - Foreign Affairs, Defence and Trade Legislation Committee of 23 November 2000, pages 80 to 98 incl
Extracts from Defence Instructions (Army) PERS 47-1 - Career Management of Australian Regular Army Officers, dated 8 December 1998 and 4 December 2001 respectively
E-mail from AFP Special Agent C McDevitt and extract from Crimes Act (Cth) 1914
52. In his report, Capt Toohey set out a summary of Lt-Col Collins' grievances and of the redress sought by him and he then summarised what he considered to be the relevant evidence in relation to each area of complaint. He then set out 18 conclusions or findings of fact and nine recommendations. Having regard to the issues in this case it is necessary to set out all of Capt Toohey's conclusions or findings of fact and his recommendations:
Conclusions/Findings of Fact130. I find as a fact that LTCOL Collins, arguably the Army's most skilled intelligence analyst, engaged in organisational, albeit constructive and accurate criticism of Defence and associated intelligence organisations, with particular emphasis on DIO and DFAT but in so doing at times exceeded his remit of restraining his assessments to operational and tactical areas.
131. I find as a fact this criticism was resented by the Director of DIO, the Director of SIP Division and the Assistant Secretary - Defence Security, who formed a strong dislike for LTCOL Collins, accused the officer of encroaching into the strategic areas of intelligence assessment and ultimately caused his details to be passed, in tandem with Defence Security Branch, to the AFP resulting in him being unnecessarily named on an AFP search warrant.
132. I find as a matter of fact that the Director of DIO became so frustrated with the activities of LTCOL Collins during INTERFET that he caused the flow of intelligence to East Timor to be suspended for approximately 24 hours and that further, he wrote to the INTERFET Commander in a [sic] an attempt to muzzle LTCOL Collins.
133. I find as a matter of fact that the Director of DIO, by his refusal to attend a meeting between IGIS, LTCOL Collins and a scribe, indirectly caused LTCOL Collins to take part in the meeting without legal representation and therefore placed LTCOL Collins at a disadvantage in presenting his point of view regarding intelligence deficiencies.
134. Whilst grateful for the Director of DIO in granting me an interview, I find as a fact his dislike of LTCOL [sic] inhibits him from reacting in an objective manner to LTCOL Collins' criticisms of DIO.
135. I find as a of [sic] fact that a pro-Jakarta lobby exists in DIO, which distorts intelligence estimates to the extent those estimates are heavily driven by Government policy which overlooks (or attributes the blame to other factions), atrocities and terrorist activities committed by the TNI - in other words DIO reports what the government wants to hear.
136. I find as a fact that the abridged report of the inquiry conducted by Mr Bill Blick at the behest of the Minister fails to adequately address LTCOL Collins' concerns regarding a plan to with [sic] the Indonesians to keep everyone else out of East Timor and the conduct of the Merv Jenkins Inquiry. ...
137. I find as a fact that LTCOL Collins' 2000 PR19 was raised but never received at DOCM for reasons unable to be determined and that its fate remains unknown.
138. I find as a fact that PR19s for LTCOL Collins for the reporting years 2001 and 2002 were not raised by HQTC-A, by either - incompetence or omission.
139. I find as a fact that LTCOL Collins was not, and still has not been, informed of the results of an investigation into him by Defence and Australian Federal Police; his initial notification of the event being a telephone call from his [sic] five days after execution of the warrant when she saw media reports of the investigation which named the complainant.
140. I find as a fact that LTCOL Collins' standing in the intelligence community has been greatly diminished following his public naming on the search warrant, to the point of him being ostracised and/or held up as a laughing stock in some quarters.
141. I find as a fact that LTCOL Collins' standing in the intelligence community was not helped by his close professional association with CAPT C Fernandes. I find as a fact that LTCOL Collins was not nominated for an honour or award by any of the relevant Chiefs of Staff whilst serving with INTERFET despite being described in the highest terms by MAJGEN Cosgrove - I am unable to reach any conclusion as to why this omission occurred.
142. I find as fact that the DCO did not provide support of any kind to the complainant or his spouse - the reasons for this being twofold: no request for assistance was sought by LTCOL Collins and DCO failed, on their own initiative to be sufficiently proactive in recognising a potential family crisis following publication of the complainant's name (connected to a search warrant) in the national media.
143. I find as a fact that LTCOL Collins, [sic] career profile declined following his 1999 PR19, firstly due to his 2000 PR19 not being received by DOCM and his 2001 and 2002 PR19s never being raised by HQTC-A.
144. I find as a fact there are systemic issues in the Defence intelligence community arising from my investigation of this ROG. ...
145. I find as a fact, that the Defence Security Branch, (activated, on the balance of probabilities) by malice, at the material time failed to inform LTCOL Collins as soon as practicable after the execution of the AFP search warrant of the fact that he was not, and never had been under investigation, causing a lack of closure which remains extant almost three years after the event.
146. I find as a fact that the incident could have been prevented by the Assistant Secretary - Defence Secretary Mr Jason Browne advising LTCOL Collins, in a timely manner, of the complainant's complete lack of involvement in the security investigation, thereby bringing about an early closure.
147. I find as a fact that the deleterious effects of the incident on LTCOL Collins could have been minimised by the DCO being more proactive in inquiring as to whether the family required assistance.
Recommendations
148. The incident could have been prevented in the context of the following recommendations: [original emphasis]
a. I recommend DIO become more receptive to constructive criticism of its product, rather than being hypersensitive and absorbed with discrediting and "shooting and [sic] the messenger", notwithstanding that the "messenger's" assessments, although invariably accurate may have strayed into strategic rather than operational and tactical areas;
b. I recommend DIO reform its recruiting practices with the object of employing career professional intelligence analysts rather than uniformed or civilian officers with no intelligence background, thereby allowing professionals such as LTCOL Collins to concentrate on their core duties rather than attempting to remedy a defective product and becoming increasingly frustrated; and
c. I recommend in the above context, that Defence intelligence agencies show more objectivity in their assessments rather than attempting to report what those agencies think DFAT and the Government of the day wants to hear.
d. I recommend that DIO's product be randomly audited by a committee of recently retired and suitably cleared Defence force officers of a minimum of two-star prior service experience.
149. I recommend that the Defence Force respond to this ROG by:
a. The Chief of the Defence Force awarding a retrospective Commendation to LTCOL Collins for his efforts during INTERFET, or in lieu, writing a testimonial letter along the above lines.
b. The Head - Defence Security Authority writing to LTCOL Collins expressing regret for the long interval taken to bring this matter to a closure, advise him that he is not and never was, the subject of a security investigation in the strict sense of the term and, having communicated with the AFP, expand on Special Agent Jakiwczyk's lack of malice combined with his investigational methodology in naming him on the search warrant;
c. LTCOL Collins being encouraged to approach either the Military Compensation Scheme or a Reserve legal officer, with the object of lodging a claim under that scheme or at common law, for mental anguish suffered over a period of just under three years;
d. Seeking early Ministerial approval for the release of the contents of this Report to the complainant;
e. LTCOL Collins returning to an Intelligence Corps position commensurate with his seniority and experience, at the earliest opportunity;
f. Seeking early Ministerial approval for release of the Report prepared by IGIS to LTCOL Collins, in its entirety; and
g. DCO inquiring as to whether LTCOL Collins requires assistance for any residual domestic difficulties he may be experiencing;
h. In order to prevent a repetition of this nature I recommend that the Defence Security Agency put in place a mechanism to ensure that person(s) named in security investigations and ultimately cleared of any involvement, be informed of their status in writing and in a timely manner;
In the above context, it follows that the incident could have been prevented by the Assistant Secretary - Defence Security, Mr Jason Browne notifying LTCOL Collins of his status in the security investigation as soon as it became evident he was not under investigation.
150. I recommend, with the greatest respect to the incumbent Head - Defence Security Agency, that Service Police re-examine the Arbite Report and associated files to ascertain whether the passing of LTCOL Collins' name to the AFP was activated by malice.
151. I recommend that the entire intelligence-gathering process, embracing ALL agencies (subject to national security caveats) be referred to the Senate Foreign Affairs and Trade Committee, to ensure objectivity, professionalism and the timely provision of assessments to Governments, without fear or favour.
152. I recommend that an audit be undertaken within HQTC-A with the object of ensuring administrative procedures are in place to ensure that PARs are rendered by Commands on the due date, in accordance with Defence Instructions (Army) PERS 47-1 dated 4 DECEMBER 2001.
153. I recommend that LTCOL [...] be required to show cause as to why he should not be censured for failing to take adequate steps to ensure that PARS were raised on LTCOL Collins, regardless of the officer's promotion prospects, ambivalent attitude or the state of disarray in the administration of HQTC-A.
154. I recommend that the introduction of electronic rendition of PARS be expedited.
155. I recommend that DOCM implement a system to ensure that individual dossiers placed before PAC members are complete in every detail.
156. I recommend that no further action other than that particularised above be undertaken.
53. Capt Toohey did not ask either the plaintiff or, to the plaintiff's knowledge, any other person within the DIO for DIO product to examine. He did not ask the plaintiff to provide him with any documents.
54. The Toohey report was sent to Col R A Brown for a report and Col Brown provided a report to Lt-Col B Carey, as the appointing authority. Col Brown referred to Capt Toohey's findings of fact and he concluded that all were supported by the evidence gathered by Capt Toohey during his investigation. Furthermore, he concluded that Capt Toohey's findings clearly demonstrated that Lt-Col Collins was denied the opportunity of presenting intelligence work without fear of repercussions for failing to adopt the predominant view. Col Brown said that it was open to the appointing authority on the evidence to find that Lt-Col Collins' complaints were substantiated. Col Brown set out Capt Toohey's nine recommendations. He concluded that Capt Toohey's inquiry was in accordance with his terms of reference and that it involved "a matter concerning a part of the Defence Force" so as to come within reg 69(1) of the Defence (Inquiry) Regulations. Col Brown expressed the view that the instrument of appointment complied with reg 70A and, in accordance with reg 70B, empowered Capt Toohey to make recommendations, which he had clearly done. Col Brown noted that recommendations 148 and 151 could not be implemented within the Army or even within the Australian Defence Force. He noted that the implications associated with these recommendations were much broader and that they "had considerable political sensitivity". He noted that they were firmly supported on the evidence and that they should be forwarded to CDF through CRA. Col Brown strongly supported recommendation 149(d). Col Brown said that recommendation 150 was "problematical" and could not be supported. Col Brown noted that the remaining recommendations fell within the authority of the ADF to remedy but, with the possible exception of recommendations 152 and 153, none of the other recommendations appeared to be recommendations the appointing authority could implement. He suggested that the appointing authority refer those recommendations to the most appropriate higher authority. Col Brown made certain observations in relation to recommendation 153 but it is not necessary for me to set out those observations.
55. The appointing authority, now Lt-Col M J Abrahams, received the Toohey report and the Instrument of Appointment and Terms of Reference. He accepted the findings made by Capt Toohey and in his report dated 15 October 2003 he set out the manner in which various recommendations made by Capt Toohey were to be implemented. He said that upon his examination of the transcripts of interviews he was "compelled to concur with [Capt Toohey's] assessment ... that the `Army's treatment of this officer over the last three years [was] nothing short of disgraceful'".
56. It seems that CRA advised that recommendations outside the authority of the CO and TC-A should be progressed through the chain of command to the Chief of the Defence Force ("CDF"). On 5 December 2003 Lt-Gen P F Leahy referred the Toohey report together with Col Brown's report and the decision of the appointing authority to Mr P Benson of DDAL. Mr Benson prepared a minute dated 18 December 2003.
57. In December 2003 Gen Cosgrove decided to refer the Toohey report and other documents to Col R R Tracey RFD QC for a report. That was done, according to the letter of instructions to Col Tracey, because TDLS had reservations about the investigation and the Toohey report and recommended to the CDF and CDF directed, that a further independent and complete legal review of the investigation and report be undertaken.
58. Col Tracey prepared a report, which is dated 4 February 2004. He reached the conclusion that the appointing authority exceeded his powers under reg 70A of the Defence (Inquiry) Regulations 1985 by requiring the investigating officer to investigate matters which were not matters concerning HQ TC-A. He also said that the use of terms such as "Defence Intelligence Community" and "standing in the intelligence community" in the instrument of appointment were "extremely vague and ill defined and apt to lead the investigating officer into areas falling outside the proper scope of an investigation" conducted under the Defence (Inquiry) Regulations 1985. He concluded that in fact that was what occurred.
59. Col Tracey concluded that the Toohey report was deficient in a number of respects. First, he criticised the overall structure of the report and said that it was not possible to link the findings Capt Toohey made to evidence summarised earlier in the report. Furthermore, it was not possible to link recommendations to particular findings. Secondly, Col Tracey said that his principal concern was to advise as to the legal efficacy of the findings of fact which underpinned the recommendations, which had been referred to the Chief of the Defence Force for action and his legal authority to act on those recommendations. Col Tracey discussed the various findings and he concluded that in some cases there was no objective basis for the finding in the material considered by Capt Toohey. In some cases an allegation involving the plaintiff was not put to him in the course of his interview, or in some other way. Two examples from Col Tracey's report will suffice. As to finding of fact number 131, Col Tracey said that there was no evidence that the three named officers had a strong dislike of Lt-Col Collins, or that they caused his details to be passed to the AFP. He also made the point that there appeared to be no material before Capt Toohey which would justify the conclusion that Lt-Col Collins' name was unnecessarily included on the warrant. As to finding of fact number 135, Col Tracey found that this was a very general and pejorative finding. It was non-specific and it was not "responsive" to any term of reference.
60. Col Tracey considered each of the recommendations made by Capt Toohey. He expressed his conclusions in the following way:
For the reasons given I consider that the inquiry process into LTCOL Collins' ROG has miscarried insofar as it has purported to deal with matters which did not fall under the command and control of the appointing authority, insofar as it has led to an investigation of bodies external to the ADF and insofar as it has led to recommendations for action by you which you could not, lawfully, take. Of the recommendations referred to you for consideration only the recommendations e, i, q and r raise matters which require your consideration. Whether or not you choose to act on them is a matter for you.
61. On 18 March 2004 Lt-Col Collins wrote to the Prime Minister of Australia. He advised the Prime Minister that in his opinion there had been a failure of institutional controls over the Australian intelligence system. He referred to his letter in December 2000 to the Minister for Defence and to Mr Blick's conclusions. He criticised Mr Blick's conclusions, and he referred to the search warrant issued in 2000. He asserted that Mr Blick had been guilty of procedural unfairness in the conduct of his inquiry and he asserted that Mr Blick and the plaintiff had "colluded" in refusing to hold the meeting with him with his security-cleared lawyer present. He referred to Capt Toohey's investigation and to the Toohey report. He asked the Prime Minister to appoint what he called "an impartial, open and wide-ranging Royal Commission into Intelligence and the influences on it".
62. On 8 April 2004 Gen Cosgrove concluded that a number of findings made by Capt Toohey were not supported by the evidence.
63. On 12 April 2004 Capt Toohey wrote to the head of the Defence Security Authority to report a possible security breach involving restricted material, namely, his report. Capt Toohey said that on 11 April 2004 he was approached in a hotel by Mr John Lyons, executive producer of a current affairs program known as Sunday. Mr Lyons had a copy of the Toohey report. Mr Lyons bought Capt Toohey a drink as he read the document. Capt Toohey confirmed that the document was identical to the report that he had handed in to HQ Army Training Command in about September 2003. Capt Toohey asked Mr Lyons how he had obtained the document and Mr Lyons said "we have our ways". Capt Toohey told Mr Lyons that assuming the report was a true copy it was "Classified Department of Defence Property". On being informed of this, Mr Lyons replaced the document inside a newspaper and, according to Capt Toohey, "made a rapid departure from the hotel".
64. I have come to the point in the chronology when the first publication was made. The plaintiff gave particulars of the defamatory matter it relied upon to give rise to the alleged imputations. Those particulars referred to the article as a whole and then some particular passages. I do not propose to set out the article as a whole. I have set out in Annexure 1 the particular passages the plaintiff relies upon.
65. It is convenient at this point to note the following features of the first publication. First, the article is presented in strong and at times sensational and emotional terms. On the front cover there is reference to it being an "Exclusive", to there being a "Defence Scandal", to matters being "Revealed" and those including "Our Intelligence Failures". Part of Lt-Col Collins' letter to the Prime Minister is shown on the front cover. The contents page again refers to a "Defence Scandal" and to an "explosive report" which has "damned" Australia's intelligence services. Mr Lyons' article is entitled "Rotten to the Corps". Again, there is reference to an "explosive" report which has "damned Australia's intelligence services".
66. Mr Lyons says that Lt-Col Collins' appraisal of Australia's intelligence services is "certain to shake the foundations of the defence establishment". Lt-Col Collins is referred to as an "army hero" and part of his letter to the Prime Minister is quoted, viz, "... to do otherwise would merely cultivate an artificial scab over the putrefaction beneath".
67. The Toohey report is said to support Lt-Col Collins' claims "that there is a cancer in the heart of our intelligence system". Capt Toohey is described as a "distinguished naval barrister" and it is said that by his report, he delivered a "blistering attack". In connection with one of Capt Toohey's findings it is said that it is certain to spark debate.
68. It is said that the Toohey report provides a "rare" view into the secretive world of military intelligence and what it "reveals" -
... is an atmosphere of political intrigue, personal character assassination and growing evidence of an intelligence bureaucracy more intent on serving its political masters than fulfilling its duty to protect the Australian national interest.
69. In his note, editor-in-chief, Mr Garry Linnell, refers to the "disturbing" findings of the Toohey report and "alarming" questions about the manner in which Australia receives and interprets its intelligence. Mr Linnell calls for a Royal Commission to be established.
70. Mr Lyons in his article and in a breakout section describes Lt-Col Collins in highly complimentary terms referring to him as "the all-Australian boy who became a shining light of the Australian Army", to have been chosen by Gen Cosgrove to be "his eyes and ears". It is said that he led a strike force to locate and protect Xanana Gusmão. There is reference to the fact that Lt-Col Collins would not be "silenced". It is suggested that his refusal to provide information tailored to suit the political doctrine of the day appeared to have cost him his career which is elsewhere described as being "in tatters". It is said that he has a new mission "to cleanse the system and salvage and restore the credibility of Australia's intelligence community".
71. Secondly, the first publication (other than the Toohey report) proceeds on the basis that the Toohey report is correct. Put another way, it adopts the Toohey report. That follows, it seems to me, from the following:
(a) a number of Capt Toohey's findings are quoted and they are not questioned in any way;
(b) the language used, such as "Scandal", "Revealed" and "damned" conveys the meaning that Capt Toohey's findings are correct. They are woven into the article such that they are adopted.
(c) Capt Toohey to a large extent relied on Lt-Col Collins. The latter is, to use the word used by the plaintiff's counsel, "lionised" in the article. Furthermore, Capt Toohey and his inquiry is referred to in complimentary terms.
(d) Mr Lyons refers to a number of matters beyond the Toohey report in a way that reinforces the adoption of Capt Toohey's report. Further details of this conclusion are set out in the third point made below.
72. Thirdly, Mr Lyons refers to Lt-Col Collins' letter to the Prime Minister. He tells the reader that Australia's intelligence services were under increasing attack for appearing to tailor their reports to suit government policy. He tells the reader that Lt-Col Collins' letter was "unprecedented" and, as I have previously said, refers to Lt-Col Collins in highly complimentary terms. Mr Lyons tells the reader that Lt-Col Collins was wrongly accused of leaking confidential material and that the Toohey report cleared him of any wrongdoing. He refers to Capt Toohey's qualifications in glowing terms. Mr Lyons tells the reader of conduct by "Defence Department officials" relating to Lt-Col Collins' security clearance. He tells the reader of certain events after the Toohey report. At one point he appears to misquote one of Capt Toohey's findings about the plaintiff's reasons for attempting to "muzzle" Lt-Col Collins. Mr Lyons states that "all key parties" accept that Lt-Col Collins' name was wrongly placed on the search warrant; the source of that assertion is unclear.
73. Mr Lyons states as fact what the Toohey report found. He states as fact that it amounts to one of "the most comprehensive inquiries into how Australia's military intelligence operates". Mr Lyons tells the reader that many of Lt-Col Collins' claims had been borne out by the Iraq conflict and by the findings of the Toohey report. Mr Lyons tells the reader of the effects of Lt-Col Collins' conduct on his career, marriage and health.
74. Fourthly, although I will discuss in due course whether the imputations conveyed by the first publication were correct, I think it appropriate to note at this point that a number of statements in the first publication were incorrect. The plaintiff identified the inaccuracies in the course of his oral submissions. I will not set out all of them; some examples will suffice. Gen Cosgrove did not choose or turn to Lt-Col Collins and it is simply wrong to say that Lt-Col Collins led a strike force to locate and protect Xanana Gusmão.
75. The Toohey report which has the word "Restricted" on the top and bottom of each page was inserted in the middle of the first publication. Two parts of the Toohey report which was in the possession of the defendant were not included: some introductory pages and the two annexures to the report. The defendant did not publish a "List of Contents" page, a page dealing with an extension of time being granted to Capt Toohey and a page dealing with a variation to Capt Toohey's terms of reference. In addition, the defendant did not publish Annexures A and B to the Toohey report. Annexure A is entitled "Comments on the Government Response to Certain Issues raised with the Minister of Defence in December 2000" and, speaking generally, deals with the Blick inquiry and Mr Blick's report. Annexure B is entitled "Systemic Issues in the Defence Intelligence Community arising directly from the Incident complained of" and deals with so-called systemic issues of the type identified in the Title.
76. The first publication was distributed in each State and Territory in the Commonwealth of Australia.
77. The plaintiff administered interrogatories on the defendant with a view to ascertaining information as to the printing, distribution, sale and readership of those editions of its magazine containing the first and second publications respectively. In its answers, the defendant gave certain figures as to printing, distribution and sale but said it could provide not information as to readership. The plaintiff tendered a number of the answers to interrogatories.
78. While preparing my reasons for judgment it appeared to me that the figures for printing, distribution and sale of the relevant editions could not be correct. The parties were contacted and invited to make further submissions. The defendant has put forward amended figures and it is agreed between the parties that these are to be treated as if the answers to interrogatories had been amended.
79. As far as the first publication is concerned, a total of 85,758 copies were printed and of this number 83,937 were distributed. Of the latter figure 2,269 copies were distributed overseas or as promotional copies (400 copies). The distribution and sales figures in relation to the remaining 81,668 copies were as follows:
State or Territory |
Distributed |
Sold |
New South Wales |
32,363 |
18,455 |
Queensland |
14,494 |
10,690 |
Victoria |
17,137 |
10,436 |
Australian Capital Territory |
1,523 plus subscriptions |
1,285 plus subscriptions |
South Australia |
5,004 |
3,398 |
Northern Territory |
1,138 |
1,023 |
Western Australia |
8,590 |
4,985 |
Tasmania |
1,419 |
1,209 |
|
|
81,668 |
51,481 |
The defendant is not able to specify the number of subscription copies distributed in the ACT or paid subscriptions in the ACT and the number is included in the NSW distribution figures and sales figures respectively. The difference between the two figures comprises unsold copies, free distributions and other.
80. My invitation to the parties seems to have set off a debate between the parties as to whether the defendant had properly answered the question in the interrogatories as to the readership of the editions containing the first and second publications respectively.
81. Eventually, that was resolved by consent by the plaintiff putting forward two Roy Morgan Readership Results (which I will receive and mark "P28") and the defendant making brief written submissions as to their significance.
82. The Roy Morgan Readership Results are for the year ending March 2004 and the year ending June 2004 and show a readership of the defendant's magazine of approximately 300,000. The limitations on the use which may be made of these results are, as the defendant pointed out in its written submissions, obvious. They are not surveys of the sale of the particular editions containing the first and second publications respectively, and there is no evidence of the fluctuations in readership which may occur within a particular survey period. Obviously enough, there are a number of factors which might lead to such fluctuations. I do not think I can put any real weight on the figures although it is appropriate that I proceed on the basis that the number of people who read the relevant editions is likely to have been a number of times greater than the number who purchased them. That is likely to have been the case particularly in the Australian Capital Territory where the stories would have been of special interest.
83. The defendant did not call any oral evidence in this case. The plaintiff administered interrogatories and the defendant's answers to interrogatories and the Gates letter (see Annexure 2) establishes the following:
1. Prior to the first publication Mr Lyons met with Lt-Col Collins on three occasions, namely, in February, March and April 2004 respectively. It is unclear what, if any, information Lt-Col Collins gave to Mr Lyons; what is said is that Lt-Col Collins would not give Mr Lyons any background information about his redress of grievance but he did confirm that he had sent a letter to the Prime Minister on 18 March 2004.
2. Prior to the first publication Mr Lyons met Capt Toohey on one occasion on or about 11 April 2004. All that passed between them was that Capt Toohey confirmed the copy of the Toohey report in Mr Lyons' possession was authentic and confidential.
3. Prior to the first publication, Mr Lyons made no effort to contact any other person to seek to verify the accuracy or reliability of the allegations and, in particular, he made no attempt to contact the plaintiff, Gen Cosgrove or Mr Blick.
4. Prior to the first publication Mr Lyons had a number of documents, including, relevantly, the following:
* Transcripts of the interviews between Capt Toohey and each of Lt-Col Collins, the plaintiff, Gen Cosgrove and Mr Blick;
* The Toohey report;
* The report of Col Brown dated 22 September 2003;
* The report of Col Tracey dated 4 February 2004;
* Lt-Col Collins' letter to the Prime Minister dated 18 March 2004.
It seems that the above documents were provided to Mr Lyons anonymously. It is acknowledged that the defendant by its servants or agents had the information set out in the two articles written by Mr Lyons in 1999.
5. Mr Lyons discussed the Toohey report in detail with his managing editor and lawyers approximately two weeks before 11 April 2004.
6. Prior to the first publication the defendant advised other media organisations of the article to be published by issuing media releases to -
... recipients of The Bulletin media releases of this nature including the Press Gallery, major metropolitan newspapers, AAP newswire and Sydney television newsrooms.
This is a quote from the defendant's answers to interrogatories.
The terms of the media release issued by the defendant are important for reasons I will explain. It is necessary to set it out in full.
AUSTRALIA'S INTELLIGENCE FAILURE The army's top intelligence analyst has written an explosive letter to the Prime Minister, detailing the systemic failures of the nation's intelligence gathering - amid claims of a `pro-Jakarta lobby' within a leading agency.
In an exclusive report in The Bulletin, John Lyons details the reasons behind the anger and frustration of Lt Col Lance Collins who believes nothing short of a full Royal Commission will help fix the problem.
Collins ends his letter with a plea: "I strongly urge you, Prime Minister, to appoint an impartial, open and wide-ranging Royal Commission into Intelligence ... to do otherwise would merely cultivate an artificial scab over the putrefaction beneath."
"The letter is unprecedented," notes Lyons.
"It is not written by a disaffected outsider, but by an army hero hand-picked to run Australia's intelligence operations inside East Timor."
FAILING THE NATIONAL INTEREST The letter chronicles a list of Australian intelligence failures in recent years, such as: "Iraqi weapons of mass destruction, delay in the (Willie) Brigitte case, warning of the Bali bombing, breakdown of order in the Solomons ... the independence of East Timor, death of an intelligence officer in Washington, resumption of Indian nuclear testing, fall of Suharto, the media-reported Indonesian capture of an ASIS officer, the Sandline affair and the testing of sarin nerve agent on an Australian farm by a Japanese religious sect."
The letter is the culmination of a four-year war waged within the Defence Department over a bid by Collins - appointed by General Peter Cosgrove to be his top ranking intelligence officer in East Timor - to seek redress for being wrongly accused of leaking confidential material.
The Bulletin has obtained a copy of the final report into the affair, which it has published in full. The findings include claims that a "pro-Jakarta lobby" exists within the Defence Intelligence Organisation "which distorts intelligence estimates to the extent those estimates are heavily driven by government policy ... in other words, DIO reports what the government wants to hear."
The report also found that a parliamentary inquiry should be held into `systemic issues' within the intelligence system, `primarily the fact that the product is driven by the policy of the government of the day' and formulated by officers with little or no career intelligence expertise.
Full details appear in The Bulletin.
To arrange interviews - and for a copy of The Bulletin report - contact [...] on [...] (w).
84. As with the first publication, the plaintiff relies on the second publication as a whole as conveying the imputation it has particularised in relation to that publication. Again, I will not set out the whole publication and, in Annexure 1, I have set out the particular passages relied on by the plaintiff.
85. The following features of the second publication should be noted. First, as with the first publication, strong and, at times, sensational language was used. "Justice" was said to be "Under Fire" and the first publication was referred to as "The Bulletin's damning exposé". It was said that "further explosive charges" had come forward. It was said that Australia's defence and intelligence services were "in crisis". Mr Lyons told the reader that a Royal Commission was needed for the "long-term cleansing of the system" and that there were "deep, systemic problems". It was said that Gen Cosgrove became "a household name" and a "TV star" whereas it was Lt-Col Collins' daily assessments which ensured that InterFET lost not a single soldier. The finding of Capt Toohey quoted in the second publication was referred to as "devastating". It was said that the attack on the Toohey report was "derailed". It was said that for the Prime Minister the "crisis [was] deepening" and that "for the sake of the nation's physical security, appointing a royal commission [was] one of the most important decisions [he could] make".
86. Secondly, the Toohey report was accepted as correct. Any attack on it was dismissed. It was woven into the article in the same way as it was woven into the first publication.
87. Thirdly, the second publication went beyond the Toohey report in a similar way to the first publication. Importantly, it stated something that was not in the Toohey report, namely, that Australian troops were endangered by the suspension to the "flow of intelligence".
88. Fourthly, as with the first publication there are errors of fact in the second publication including the assertion that Gen Cosgrove hand-picked Lt-Col Collins.
89. The second publication was also distributed and sold in each State and Territory within the Commonwealth of Australia. A total of 86,767 copies were printed and, of this number, 84,984 were distributed. Of the latter figure 1,869 copies were distributed overseas. The distribution and sales figures in relation to the remaining 83,115 copies were as follows :
State or Territory |
Distributed |
Sold |
New South Wales |
33,212 |
21,769 |
Queensland |
15,168 |
11,450 |
Victoria |
17,452 |
11,235 |
Australian Capital Territory |
1,874 plus subscriptions |
1,697 plus paid subscriptions |
South Australia |
4,845 |
3,561 |
Northern Territory |
1,011 |
966 |
Western Australia |
8,208 |
5,105 |
Tasmania |
1,345 |
1,271 |
|
|
83,115 |
57,054 |
90. The defendant is not able to specify the number of subscription copies distributed in the ACT or paid subscriptions in the ACT and this number is included in the NSW distribution figures and sales figures respectively. Again, the difference between the two figures comprises unsold copies, free distributions and other.
91. Mr Lyons made no attempt to contact the plaintiff prior to the second publication.
92. The plaintiff took action in response to the two publications. On 19 April 2004 he wrote to Dr Shergold AM, Secretary of the Department of Prime Minister and Cabinet, and set out his response to the first publication. He also prepared detailed notes of his response to the first publication.
93. The evidence established that after the first publication a number of other media outlets published articles or programmes dealing with the issues (or at least some of them) discussed in the first publication. The first articles and programmes said by the plaintiff to be natural and probable consequences of the publications were not put in evidence although they were identified in particulars supplied by the plaintiff. There was an article which appeared in The Australian on 21 April 2004. Gen Cosgrove, who was then Chief of the Defence Force, and Mr R Smith, who was Secretary of the Department of Defence, prepared a joint response to that article and that response was published in The Australian on 22 April 2004. In their response they stated that the assertion that the flow of intelligence to Australian forces in East Timor had been deliberately cut off by the Director of DIO had "no basis in fact". They stated that there had never been any cut to the overall intelligence flow to forces in East Timor, nor were the lives of Australian personnel endangered. They stated that one specific DIO database suffered technical problems and a number of outages. Lt-Col Collins was told that this was a DIO policy decision but, in fact, that was not the case. They stated that there was no basis for Capt Toohey's finding that the Director of DIO caused the flow of intelligence to be suspended.
94. Gen Cosgrove and Mr Smith also wrote to the editor of The Bulletin magazine. Their joint letter appeared in the edition of the magazine published on 28 April 2004 and dated 4 May 2004. In addition to their letter there were other letters to the editor discussing the issues and two articles. First, there was an article in which Mr Lyons sets out the contents of an interview he had with Captain Toohey. That article appeared under the heading:
The Captain and the Cover-upThe senior officer who wrote a damning report on the Australian intelligence services says he has been made a scapegoat in a "shabby, tawdry cover-up".
There was also an article by Mr Paul Daley.
95. On 23 April 2004, the Prime Minister responded to Lt-Col Collins' letter to him dated 18 March 2004. He referred to a number of complaints made by Lt-Col Collins in relation to "East Timor intelligence matters". He referred to Mr Blick's report and to Mr Blick's finding that Lt-Col Collins' allegations did not stand up to objective scrutiny. As to the loss of access to the database, the Prime Minister said the following:
You have also expressed the belief that, in December 1999, DIO made a policy decision to withhold access by INTERFET's Australian intelligence staff to a classified intelligence database. Mr Blick found that the loss of access resulted from technical problems rather than a deliberate decision. I have attached for your information a recent letter to the Australian from the Chief of the Defence Force, General Cosgrove, and the Secretary of the Department of Defence, Mr Smith, which again confirms the technical reasons for the outage, and points out that this was the subject of correspondence with you in late 1999.
96. In April 2004 Gen Cosgrove decided to seek a further report from the Inspector-General of Intelligence and Security. At that time Mr Ian Carnell held that position and he was asked and did consider whether there was any reason to reopen Mr Blick's inquiry. He decided that there was no reason to reopen Mr Blick's inquiry in relation to the following matters:
1. Whether DIO had acted in mid-1998 to quash early warning, included in an assessment prepared by Lt Col Collins, of problems developing in East Timor which would require ADF deployment.2. Whether DIO assessments were relatively soft on Indonesia, reflecting a DIO view that related more to its perception of an Australian policy line than a professional assessment of the situation.
Mr Carnell decided that there may be grounds to reopen Mr Blick's inquiry to consider whether access to the database had been deliberately cut by the DIO in December 1999. Mr Carnell did not agree with the suggestion that there were procedural defects and an incorrect assessment of the evidence by Mr Blick. Mr Carnell decided that there was no material which justified further consideration by him of the Jenkins' case and alleged comments and actions by a senior officer in 1998. Mr Carnell decided that there was no case on the available material for a formal inquiry by him into allegations of malicious actions by the Director of DIO.
97. On 4 May 2004 solicitors acting for the plaintiff wrote to the editor of The Bulletin complaining of, among other things, the first and second publications and seeking an apology.
98. On 7 May 2004 the plaintiff wrote a minute dealing with the allegation of a cut to intelligence to the InterFET operation in 1999.
99. On 10 May 2004 solicitors acting on behalf of the defendant wrote to the solicitors acting for the plaintiff offering the plaintiff an opportunity to respond either by way of letter or interview. That offer was not accepted by the plaintiff. In the letter the defendant denied that the meanings alleged by the plaintiff were conveyed by the first and second publications but also asserted that the meanings which were conveyed were justified by the evidence of Lt-Col Collins and others and by the findings of Capt Toohey.
100. On 20 July 2004 Mr Phillip Flood forwarded a report he had prepared into the Australian Intelligence agencies to the Prime Minister. The Prime Minister had requested such a report on 4 March 2004.
101. Mr Carnell was asked to investigate the cut to intelligence and in due course the plaintiff made submissions to him. On 30 November 2004 Mr Carnell prepared his report and in that report he reached the following conclusions:
(a) The denial of access to the relevant Dili users on 20-21 December 1999 was deliberate and not the result of technical failure or technical faults in any part of the system.(b) It is possible that the Director and Mr Hansson from the IT area of DIO had a brief discussion on 20 December 1999, but I do not accept that the Director gave an instruction to cut the access. Mr Hansson later instructed a subordinate to effect a denial of access for the relevant Dili users, and this was done.
(c) Mr Hansson may have provided an intentionally false statutory declaration (in part) and hence potentially committed an offence under the Statutory Declarations Act 1959. The matters in paragraphs 57-64 above may also have constituted a breach of some of the provisions of the Australian Public Service Code of Conduct.
102. Mr Carnell said that the important conclusion he had reached on the evidence was that the Director had not given an instruction to cut access to the database of Dili users.
103. Subsequently, Mr R N McLeod AM conducted an investigation into whether there had been a breach of the Australian Public Service Code of Conduct by the plaintiff. Mr McLeod's report is dated 25 February 2005 and his key conclusions are as follows:
144. Mr Lewincamp indicated to me that he did not place any credence in Mr Hansson's comment that DIO had cut Dili's access off. Mr Lewincamp felt it had not been put forward by Mr Hansson with any great conviction. His comment had been linked with his indication that Mr Lewincamp had given him authorisation to cut Dili's access off which Mr Lewincamp knew to be wrong. Following the exchange with Mr Hansson as part of the process leading to the statutory declarations being completed, Mr Lewincamp saw the completed statement signed by Mr Hansson that seemed to support his original belief and that of his senior colleagues that the loss of access was due to technical reasons. Mr Lewincamp indicated it was for these reasons that he took no further action on what he considered to be a mistaken recollection on Mr Hansson's part.145. For there to have been no attempt by the Director to verify what was the precise nature of the technical problem between the time when LTCOL Collins complained about the loss and when the IGIS was asked to undertake the first inquiry is understandable. However, once DIO's most senior IT manager had suggested that DIO itself removed access, for Mr Lewincamp not to have instituted his own inquiries to put the suggestion to rest one way or the other, was a significant error of judgement on his part in my view.
146. Mr Blick was misled as he took Mr Hansson's testimony to be confirmation of what others had been saying. Had he been made aware that within DIO itself there had been an indication from a responsible level within the IT area that the loss was not due to a technical fault, I feel sure he would have followed it up before finalising his report in the way he did. Mr Lewincamp clearly did not believe Mr Hansson but to have not mentioned Mr Hansson's comment to Mr Blick, made it inevitable that Mr Blick would have reached the conclusion he did. Some of the other material provided to Mr Blick was inaccurate due to it relying too heavily on what was believed to have been the cause of the loss of access. This appeared to make the case for a technical fault as the reason for the loss stronger than it really was.
147. From that point onwards briefings from Mr Lewincamp to the Secretary, the CDF, the Minister and the Prime Minister continued to rely on the explanation that the outage had been as a result of a technical problem.
104. On 23 March 2005 Mr Henderson, Deputy Secretary Corporate Services, Corporate Services and Infrastructure Group, issued to the plaintiff a notice of potential breaches of the Australian Public Service ("APS") Code of Conduct by the plaintiff. The plaintiff made submissions to Mr Henderson on 8 April 2005. On 6 May 2005 Mr Henderson advised the plaintiff that he had determined that the plaintiff's failure personally to initiate investigations into Mr Hansson's comment to him that access to the database had been turned off did not involve a breach of the APS Code of Conduct. However, the plaintiff was advised that it had been determined that there was a lack of care and diligence by him in not informing Mr Blick about Mr Hansson's comment and that that lack of care and diligence constituted a breach of the APS Code of Conduct. He was advised that it had been determined that he would not be subject to any of the sanctions set out in s 15 of the Public Service Act 1999 (Cth); rather, that he would be counselled in regard to the failure to disclose all relevant material to Mr Blick and, more generally, in respect of his management style. The plaintiff was counselled by Mr Smith who, as I have said, is Secretary of the Department of Defence.
105. On or about 29 October 2004 the defendant filed and served a defence to the plaintiff's statement of claim. In that document it denied that the imputations alleged by the plaintiff were conveyed by the first and second publications. It also pleaded the defence of justification. On 16 December 2005 the defendant gave particulars of justification in relation to any imputation defamatory of the plaintiff while at the same time denying that the imputations alleged by the plaintiff were conveyed by the first and second publications. On 20 July 2007 the solicitors for the defendant wrote to the solicitors for the plaintiff advising them that the defendant would not be pressing the plea of justification. By a Further Amended Defence filed and served with leave after the trial began, the defendant removed the pleas of justification from its Defence.
106. Before I leave this section, I note that there was an application by the plaintiff to tender three documents to which objection was taken by the defendant. I rejected the tender of two of the documents but accepted into evidence the tender of the third document. I said I would publish my reasons for reaching these decisions as part of my main reasons for judgment. I do so in Annexure 2 to these reasons.
III WITNESSES
107. The plaintiff gave evidence and he called a number of witnesses. The witnesses he called were his wife, Mrs Barbara Lewincamp, Gen Peter Cosgrove, Mr Richard Smith, Mr Hugh White, who in 2004 was the Director of the Australian Strategic Policy Institute, Mr Richard Brabin-Smith, who has held a number of positions in the Department of Defence, Mr Robert Orr, who is one of Her Majesty's Counsel, and Air Chief Marshal Angus Houston, who is Chief of the Defence Force.
108. As I have said, the defendant did not call any oral evidence. I did not hear evidence from Mr Lyons, Lt-Col Collins or Capt Toohey. There is no suggestion that any of these people were not available and, in fact, Capt Toohey sat in the body of the court for most of the hearing and I was told that Lt-Col Collins was in court on one occasion towards the end of the trial. The defendant did tender a number of documents.
109. The plaintiff was in the witness box for a considerable period of time. I accept his evidence. The plaintiff was an honest witness and he gave his evidence in a straightforward and clear fashion. He is an intelligent and articulate man. I consider that he was slightly defensive when questioned about the accuracy of joint statements made by Gen Cosgrove and Mr R Smith immediately after the first publication and, in particular, as to what the ordinary reader would understand those statements to mean as to the cause of the loss of access. Aside from that one observation, the plaintiff was an impressive witness.
110. The plaintiff said that his approach to the preparation of DIO product was one of being frank and fearless. He said that the DIO was never the subject of pressure from the Government in terms of the contents of its product. He never reported matters to the Australian Government simply because they were what the Government wanted to hear. The plaintiff described two important matters he was dealing with in the middle and latter part of 1999. The first involved the consequences of an espionage case and the suicide of a DIO attaché in Washington DC (Mr M Jenkins) and the second involved DIO's role in the deployment of Australian troops in East Timor on 20 September 1999. The plaintiff described the intelligence services made available to the Australian troops in East Timor; it is not necessary for me to set out the details. He said that access to the database was given without consultation with the DIO.
111. The plaintiff said that he has only met and spoken to Lt-Col Collins once and that was at the meeting arranged by Mr Blick. He had no strong feelings about him and, in particular, no strong dislike of him between December 1999 and April 2004. The plaintiff said that shortly after he joined the DIO he became concerned about Lt-Col Collins commenting on DIO product and the manner in which he was doing that. In late 1999 he became irritated by the fact that Lt-Col Collins was publishing material, "which went well beyond the area of operations of the InterFET forces, and that he was publishing commentary on matters such as developments in Aceh or political developments in Jakarta". The plaintiff said that by October 1999 a large number of DIO assessments on East Timor and Indonesia were leaked and progressively published by a range of media outlets and, as a result, there was an attempt to introduce tighter controls on distribution.
112. The plaintiff saw the two articles published in The Bulletin in October and November 1999 respectively, and he identified one of the assessments referred to in the second article as an assessment he had written, or partly written, in September 1999. The leaks of DIO product were viewed as serious and an investigation into the leaks was carried out by the Defence Security Authority and the AFP. The plaintiff was informed from time to time of the progress of the investigation.
113. The plaintiff said that having regard to the other issues he was dealing with in 1999 and 2000 he rated his concern about Lt-Col Collins' activities as, "[v]ery low indeed. Very marginal in my attention and any focus that I gave at the time."
The plaintiff described the events of 21 December 1999 as far as the loss of access to the database was concerned. He said that he did not recall speaking to Mr Hansson on 20 December 1999. He said that he did not view access to the database as "operationally critical" as had been asserted by Lt-Col Collins.
114. The plaintiff never required or directed Lt-Col Collins not to report on West Timor.
115. The plaintiff described his reaction upon reading the first publication. He said that he could see from the outset that the first publication would lead to a number of media articles on the issue. He said that he was outraged and furious; he considered the statements were false. He remembered what Mr Lyons had written in the articles which had been published in 1999. The plaintiff also said that he was very anxious, he was concerned about the effects of the first publication on his family and he had a feeling of helplessness. The plaintiff was contacted by many friends who offered their support. The plaintiff was taken through various statements in the first publication and asked to provide his comments. It is not necessary for me to go through each matter. He said that a number of the statements were untrue, including the statement that he, in tandem with the Defence Security Branch, had caused, directly or indirectly, Lt-Col Collins' name to be passed on to the AFP and that that had led to Lt-Col Collins' name appearing on the search warrant.
116. In the days and weeks following the first publication the plaintiff also began to feel disillusioned and downhearted. The plaintiff was concerned about his reputation in terms of readers outside his friends and those who knew the facts and about the effects on his family of the first publication.
117. In the Australia Day Honours List in January 2004 the plaintiff was awarded the Public Service Medal.
118. The plaintiff said a telephone message from Mr Lyons was left at his office on 29 April 2004. He did not return the call. He was astonished at the defendant's response through its solicitors to the letter from his solicitors. He did not take up the defendant's offer to publish a letter of response or to publish an interview with him.
119. The plaintiff said that he was angry and astonished at the defendant's plea of truth. The plaintiff had similar feelings on reading the second publication and he was outraged at the suggestion that there had been a cut to intelligence which had endangered the lives of Australian soldiers.
120. At the time he gave evidence the plaintiff said that he still had feelings of anger, frustration and disillusionment about the first and second publications, and anxiety about the effects on his wife and children. He said that his wife had to endure his reaction to the publications.
121. In December 2004, the plaintiff had a conversation with Mr Smith, who was then the Secretary of the Department of Defence. The plaintiff raised with Mr Smith the question of what the Government thought of him as a senior public servant. Mr Smith agreed with the plaintiff's suggestion that his career had been "tarnished" by the relevant events.
122. The plaintiff was subject to a reasonably lengthy cross-examination which focused on three main areas.
123. First, he was asked about the loss of access to the database and a number of matters were put to him about that topic. It was put to him, and he denied, that prior to the loss of access he instructed Mr Hansson to disconnect access to the database. It was put to him, and he denied, that the day after the loss of access he became aware that access had been lost as a result of a deliberate decision by an officer within DIO. It was put to him, and he denied, that during the Blick inquiry the DIO had covered up the truth about the reason for the loss of access. Secondly, the plaintiff was cross-examined about certain incidents in 2004 which are unrelated to the first and second publications but which were said by the defendant to be relevant to damages. It was put to the plaintiff that the incidents had had an adverse effect on his reputation. The first incident arose out of a seminar the plaintiff gave at the Australian National University in about August 2003. He considered that any comments he made in the course of the seminar were subject to the Chatham House rule. In February 2004 there were media reports of an unidentified senior intelligence official making comments critical of Government policy and, although the plaintiff said that he did not make all the comments which were attributed to him (that is, he was quoted inaccurately), he identified himself as the senior intelligence official. Mr Smith subsequently counselled the plaintiff for his lapse of judgment which, it was said, had embarrassed the Government, the Department of Defence and the plaintiff himself. The second incident involved the plaintiff's solicitors on his instructions writing a letter to Capt Toohey. On 25 May 2004 the solicitors acting for the plaintiff wrote to Capt Toohey, and they said, among other things, the following:
We refer to our letter to you of 3rd May, on behalf of Frank Lewincamp.Our client believes you should be given a final opportunity to make an apology and retraction.
On 31 May our client must give evidence before a Parliamentary committee, and it would clearly make his task easier, and we believe it would also be preferable from your point of view, if he were able to say you had retracted some of your assertions.
The despatch of this letter led to the plaintiff being cautioned by a Chair of one of the Senate Committees in June 2004. The letter from the Chair referred to "any attempt to intimidate or threaten a witness". A certain amount of publicity followed the administering of the caution. An article in The Sydney Morning Herald of 28 June 2004 under the headings "Spy Master cops a Senate caution" and "Spy Master cops a Senate caution over his request for an apology", discussed the incident. Thirdly, the plaintiff was cross-examined about the findings of Mr Ian Carnell, the Inspector-General of Intelligence and Security, and his (the plaintiff's) conduct in relation to the loss of access to the database. As I understood it, what was put to the plaintiff was that even on his own account of the loss of access to the database his conduct as Director of DIO could be criticised quite fairly.
124. As far as the first main topic of cross-examination is concerned, the basis of the defendant's challenges to the plaintiff's evidence comprised the wording of a series of electronic messages which were tendered in evidence and Mr Carnell's findings, and, in particular, his conclusion as to what Mr Hansson said at the meeting with the plaintiff on 5 December 2001 (see [43] above). The defendant asked me to draw certain inferences unfavourable to the plaintiff. I decline to do so because I accept the evidence of the plaintiff. I make the following findings. Access to the database was cut as a result of a deliberate decision by a person within DIO, namely, Mr Hansson, and there was a loss of access for about 26 hours from early afternoon on 20 December 1999 to some time in the afternoon of 21 December 1999. The decision to cut access was not made by the plaintiff. The plaintiff may have met with Mr Hansson on 20 December 1999 but he does not recall doing so. He did not direct Mr Hansson to cut access to the database. The plaintiff met with senior management at DIO (Dr Keen, Col Meekin and Mr Bowen) on the morning of 21 December 1999 and he was told of the loss of access. He was told the loss of access had occurred as a result of technical problems. He was not previously aware that the Australian troops in East Timor had access to the database. He asked if security restrictions could be put in place and directed that there be a delay in resumption while that was investigated. It was not possible and access was restored. There was a meeting between the plaintiff, Mr Winsor and Mr Hansson in December 2001 in connection with the Blick inquiry and at that meeting Mr Hansson raised the possibility of DIO cutting access to the database and the plaintiff said to Mr Hansson that that was not what he had told the plaintiff at the time. Mr Hansson subsequently signed a statutory declaration saying the loss of access to the database had been caused by technical problems. The plaintiff did not sign a statutory declaration knowing it to be false.
125. As far as the second and third main topics of cross-examination are concerned, nothing was put to the plaintiff which causes me to doubt his credit, although in due course I will need to consider the impact of the matters themselves.
126. There was no attack on the credit of the other witnesses called by the plaintiff. They were all honest and straightforward witnesses and I accept the evidence given by each of them.
127. Gen Cosgrove was an impressive witness. In March 1998, he was the Commander 1st Division and Deployable Joint Force Headquarters. In September 1999 he was appointed Commander of the International Force in East Timor, known as InterFET and he was deployed to East Timor. He was involved in operations in East Timor from September 1999 to about February 2000. On his return to Australia, he was appointed Commander, Land Command Australia, and, later in 2000, he was promoted to the position of Chief of Army. In 2002 he became the Chief of the Defence Force and he held that position until 2005. He has received a number of awards and honours.
128. Gen Cosgrove explained how Lt-Col Collins came to be in East Timor in 1999. He said that in late 1998 there was a vacancy in the job of senior intelligence officer at his headquarters and that he asked the Army to provide another intelligence officer at short notice. He said that it was his clear understanding that Lt-Col Lance Collins was basically "the only person available". He had not heard of Lt-Col Collins before his name was put forward. Gen Cosgrove said that in East Timor he saw Lt-Col Collins on a daily basis in the relevant period in 1999. He was able to observe Lt-Col Collins' work which he described as follows:
... meticulously done. He would work extraordinarily hard.
129. Gen Cosgrove did not see Lt-Col Collins after they parted company in East Timor.
130. Gen Cosgrove said that despite his favourable view of Lt-Col Collins' work he did not agree with the description of Lt-Col Collins in the first publication. He described Lt-Col Collins' function as involving the "lower tactical level". He described the differences between the tactical level and the operational and strategic levels in following way:
There's the operational level which might be the level at which things in the somewhat wider region might be of - of particular interest. So a slightly higher level. And then there's the strategic level of intelligence which might go to the motivations of nation states or regions, or - or alliances. And that's a simple description, but the tactical level is very much focused on the here and now, the problem in front of you, on the ground in a place like East Timor.
131. Gen Cosgrove said that Lt-Col Collins' role was to provide him at his level (that is, Lt-Col Collins' level) with the information he needed to conduct the tactical operation. He said that Lt-Col Collins had an extremely strong opinion of Indonesian political and military motivations towards Australia and of their conduct in places like East Timor which Gen Cosgrove described as a "jaundiced" view of those matters. Lt-Col Collins showed Gen Cosgrove a paper he had prepared in mid-1999. Gen Cosgrove did not share Lt-Col Collins' views and he told him so. In fact, the paper which Lt-Col Collins showed Gen Cosgrove was the paper dated 10 September 1999 and entitled "Beyond Credulity: Strategic Intelligence - the Intellectual Basis of a Strategic Reverse" (see [26] above). Gen Cosgrove said that he did not agree that there was a pro-Indonesian lobby or group.
132. Gen Cosgrove said that he was not aware of a strike-force to protect Xanana Gusmão.
133. Gen Cosgrove described the database as one of a number of different databases available to the forces in East Timor. He described the material on the database in the following way:
... like an Intelligence broadsheet which gave us access to a wide menu of Intelligence items which were, generally speaking, set at the high level, not invariably, but mostly on issues of higher import. It would certainly be at the strategic level and it would be periodic in nature, rather than episodic. So it would list of things that were contemporary but, in saying that, they might be information that's several weeks old or several months old but now, having been analysed, was presented in a - a sort of a - as I say a broadsheet way.
134. On 20 December 1999 Lt-Col Collins told Gen Cosgrove that access to the particular database had been cut off. Gen Cosgrove told him to "get on with that". Gen Cosgrove subsequently received a copy of the plaintiff's minute to Lt-Col Collins dated 22 December 1999.
135. By 20 December 1999 the InterFET forces had largely pacified the country of East Timor and certain contingents were able to return to their home countries. The position was stable in terms of deployments and InterFET was arranging for the force to follow, which was a formally structured and commanded international force under a United Nations mandate. There were no Indonesian military troops in East Timor. Gen Cosgrove said that as at 20 December 1999 his assessment of the danger of any major hostility was low or negligible. The type of risks that remained were border incursions by the militia, that is to say, small groups coming over to either conduct political activity or, more likely, criminal-based activity such as black-marketeering. The material on the relevant database was, in the opinion of Gen Cosgrove, not likely to be relevant to dealing with risks of that kind. He said that the database in question did not contain time-sensitive information in relation to what was going on in East Timor on any particular day. The loss of access to the database between 20 and 21 December 1999 did not jeopardise the lives of Australian soldiers.
136. Gen Cosgrove was the chairman of the board which made recommendations for the conferral of honours and to his knowledge no one attempted to interfere in any way with the proceedings of the board. He cannot remember whether Lt-Col Collins was nominated for an award.
137. Gen Cosgrove said that he had been a "consumer" of DIO product from at least 1979 and he said that over the period during which he was Senior Commander in the Army and, in particular, from 1999 to 2005, he thought that DIO's level of objectivity was acceptable. He described DIO as "painstaking, rigorous, analytical and objective".
138. Gen Cosgrove was asked about his relationship with the plaintiff. He said that he met the plaintiff either shortly prior to his deployment to East Timor or shortly after his return. Thereafter, he met him quite frequently as they both served on various committees. He was aware of the plaintiff's reputation in government and public service circles and he said that the plaintiff had a strong reputation. He said:
He was regarded as having a good intellect, very determined, even pig-headed on occasions. He certainly had a - a reputation for - as I said, a strong intellect and very, very energetic. He had a strong reputation.
139. Gen Cosgrove said that the plaintiff was not regarded as a "yes man" or a person inclined to tailor his views to suit others. He described the effect of the first publication on the plaintiff's reputation in the following way:
Well, to summarise, I think Mr Lewincamp immediately became damaged goods in the eyes of anybody who would have read that article. He was held up as a man who had deliberately cut off Intelligence for improper reasons, and to have been responsible for an organisation which gave skewed or biased or led reporting. And those two - if that was true, then his reputation was in tatters.
140. Gen Cosgrove said that the publication became the "discussion topic of the time". He said that after the first and second publication his observations of the plaintiff were that he had become somewhat depressed and withdrawn and very cynical.
141. Gen Cosgrove was the Chief of the Defence Force at the time he was interviewed by Capt Toohey in June 2003. He described what he did upon receiving the Toohey report. He asked for it to be the subject of a "very authoritative legal review" and he received the report of Col Tracey. He then dealt with the Toohey report.
142. In cross-examination, Gen Cosgrove said that he believed Lt-Col Collins had told him that the database had been cut off as the result of a "technical hitch".
143. Mrs Barbara Lewincamp gave evidence of her husband's personality and reputation. He was independent, hard-working and strong-minded. Her description was similar to that given by Gen Cosgrove. She described how her husband became very upset by the first publication and, in particular, the allegation that he only told the government what it wanted to hear. The plaintiff "closed down and became tense and stressed for a long time". They stopped going out as much as they had previously. The first publication was discussed at Mrs Lewincamp's place of employment and she was asked questions about how she and her family were coping and about the effect of the publication on her career. The litigation has been a source of worry and stress.
144. Mr Smith was Secretary of the Department of Defence from 18 November 2002 to 1 December 2006. He met the plaintiff in March 1994. He had been told the plaintiff was very bright and had very strong analytical capabilities. In April 2004 he moved in defence circles and the wider public service circles and he had contact with Ministers and their staff. Mr Smith described the plaintiff's reputation in these circles as follows:
He was seen for the qualities I've referred to earlier of being very bright, very strong forensically analytical, tough minded, he was seen as a man of - with some courage and a man who was proud of his work and demanding of his staff.
Mr Smith said that the plaintiff had a reputation for being his own man.
145. Mr Smith described the effects of the allegations in the first publication on the plaintiff's reputation. First, he said that as to the allegation or suggestion that DIO told the government what it wanted to hear, the plaintiff's reputation was not affected amongst those who knew him, that it raised a question mark within the wider community of the public service and, as far as ministerial staff circles were concerned, the plaintiff's name was associated with a problem. Secondly, he said that as to the allegation or suggestion that the plaintiff had deliberately cut the flow of intelligence to Australian Forces in East Timor, the plaintiff's reputation was not affected by those who knew him, but as far as a wider circle was concerned, particularly the military circle, there would have been an inclination to accept the allegation or suggestion. Thirdly, the same could be said of the other allegations or suggestions in the first publication.
146. Mr Smith said that the second publication, insofar as it raised an allegation or suggestion similar to that referred to in the second point "compounded" the damage which had been done earlier.
147. Mr Smith's observations of the plaintiff after the first publication were that he became preoccupied with the issue and frustrated with the fact that he had been dealt with unfairly. As time passed, he appeared to become depressed.
148. Mr Smith received the respective reports of Mr Carnell, Mr McLeod and Mr Henderson and he counselled the plaintiff as proposed by Mr Henderson. There was limited circulation of Mr Carnell's report and very limited circulation of the respective reports of Mr McLeod and Mr Henderson.
149. Mr Smith was asked about the plaintiff's comments during a seminar at the Australian National University. A statement about those comments was made at a hearing of the Senate Estimates Committee on or about 18 February 2004. Mr Smith counselled the plaintiff about the risks of not being reported accurately on a matter likely to give rise to public controversy. In counselling the plaintiff, Mr Smith referred to what the plaintiff had done as a lapse of judgment and one which had embarrassed the plaintiff, the Department of Defence and the Government. Mr Smith described the incident as a "flash in the pan" and said that it did not affect the plaintiff's reputation.
150. In about November or December 2004, Mr Smith and the plaintiff had a discussion about the plaintiff's future career prospects and Mr Smith agreed with the plaintiff that his reputation in Government had been harmed by the first and second publications. He said that he would be reluctant to place the plaintiff in a position in which he had day to day contact with the Australian Defence Force and that "more generally in the public service" there was a "nagging question" about the plaintiff's name.
151. Mr Smith agreed that the fact that Mr Blick was left to reach a conclusion which at least one officer within the DIO knew to be incorrect was a highly unsatisfactory situation and that as head of the DIO at the time, the plaintiff had to take some responsibility for that circumstance. He also agreed that some people within military circles would view the plaintiff with disfavour simply by reason of the fact that he was the head of an organisation which had deliberately cut access to the database.
152. Mr Hugh White is Professor of Strategic Studies and head of the Strategic and Defence Study Centre at the Australian National University. In 1980 he took up a position in the Office of National Assessments. Thereafter, he spent some time as an academic at the Australian National University and as a journalist at The Sydney Morning Herald. He was a Senior Ministerial Adviser to the Minister of Defence and a Ministerial Adviser to the Prime Minister. From 1993 to 1995 he was the head of international policy within the Department of Defence, and from 1995 to 2000 he was the Deputy Secretary for Strategy and Intelligence. In 1999 his title changed to Deputy Secretary for Strategy. He was the Acting Secretary of the Department of Defence for a period in 1999. From 2001 to 2004 he was the Director of the Australian Strategic Policy Institute. He described that body as an independent government-funded "think tank".
153. Mr White first met the plaintiff in the mid-1980s or thereabouts. Then, in 1995, Mr White was the chair of the selection panel which appointed the plaintiff to the position of Director of the DIO.
154. In 2004 Mr White moved in circles in which the plaintiff had a reputation and he referred to those circles as strategic and government circles.
155. Mr White described the plaintiff's reputation in 2004. The plaintiff had a reputation for being highly intelligent, very analytical, considered in his views, committed to good outcomes, cautious in expressing opinions and very forthright in expressing his views once he had formed them. The plaintiff had a reputation for not tailoring his opinions to suit the expectations of those to whom he was speaking.
156. Up until Mr White left the Department of Defence in 2000, he was a "consumer" of DIO product. In his opinion, that product was not tailored to accommodate the views of a particular audience. In particular, in 1999 he read DIO product relating to events in Indonesia and in East Timor. He rejected the suggestion that there was a "pro-Jakarta lobby" or that DIO product was telling the government what it wanted to hear.
157. Mr White said that in 1999 there were leaks of DIO product to the media and that was of great concern to the Government and the Department of Defence.
158. Mr White was asked about his perceptions of the effects of the first publication on the plaintiff's reputation. He gave a series of answers on this topic. It was not always clear whether he answered by reference to his perceptions at the time, or by reference to the seriousness of the statements in the first publication and his opinion as to the likely effects of such serious statements. Mr White said that as to that group of persons who knew the plaintiff well, the first publication would not have affected his reputation. As to the group of persons who did not know the plaintiff, Mr White said that the suggestion that DIO product was tailored so as to tell the government what it wanted to hear was a suggestion of a very serious derogation of duty and abuse of position on the part of the plaintiff. It was well understood that intelligence assessments needed to be objective. As to the suggestion that the plaintiff had caused the flow of intelligence to Australian soldiers in East Timor during the InterFET operations to be suspended for 24 hours, Mr White described that as a "shockingly serious allegation", and he said that if believed it would seriously affect any confidence people had in the plaintiff to perform his duties. Mr White said that the suggestion that the plaintiff was trying to muzzle Lt-Col Collins was a fairly serious allegation. He said that the suggestion that the plaintiff had caused Lt-Col Collins' name to appear on the search warrant because of his personal dislike of him was an extremely serious allegation which "would very seriously affect Frank's reputation".
159. Mr White said that the suggestion in the second publication that the plaintiff caused the flow of intelligence to Australian troops in East Timor to be suspended for 24 hours was likely to have had the same effect on the plaintiff's reputation as the same suggestion made in the first publication.
160. Mr White said that he thought the first publication affected the plaintiff quite deeply.
161. Mr White was asked about the effect on the plaintiff's reputation of the publication of the comments he made during the seminar at the Australian National University. He did not think that those events affected Mr Lewincamp's reputation.
162. Mr White wrote two articles about the issues raised in the first and second publications, one for The Sydney Morning Herald and the other for The Age. Those articles were published on or about 22 April 2004.
163. For a period of approximately 30 years, Dr Richard Brabin-Smith has held a series of senior positions in the Department of Defence. He has held the position of First Assistant Secretary for Force Development and Analysis and First Assistant Secretary for International Policies. Between 1993 and June 2000 he was the Chief Defence Scientist and between 2000 and 2002 he was Deputy Secretary for Strategic Policy. Dr Brabin-Smith retired in early 2003 and since then he has been a visiting fellow in the Strategic and Defence Study Centre of the Australian National University. Prior to early 2003 he moved in public service, military and government circles and since retiring he has moved in university circles. Dr Brabin-Smith said that the plaintiff had a reputation for being frank and fearless, and he was not the type of person who would "trim his advice to suit the prevailing wind". Dr Brabin-Smith related an incident which had happened only recently when the plaintiff's name came up at a meeting and one of those present said "he is the guy who turned off the source of intelligence to the Defence Force in East Timor".
164. Dr Brabin-Smith said that he received DIO product between 1993 and 2000. In particular, his attention was directed to the 1999 year and DIO product dealing with activities in Indonesia and East Timor. He said that DIO product did not follow a pro-Jakarta line or an approach of telling the government what it wanted to hear.
165. Mr Robert Orr is one of Her Majesty's counsel. He is Deputy General Counsel in the Office of General Counsel, Australian Government Solicitor. He is responsible for advising on public, constitutional and administrative law and he appears in litigation on behalf of the Commonwealth of Australia. He first met the plaintiff in 1993 and he is a close friend of the plaintiff. He sees the plaintiff and his family on a regular basis.
166. Mr Orr gave evidence as to the plaintiff's reputation. He said that the plaintiff had a reputation as "intelligent, an excellent manager, ethical, apolitical, frank, hard-working and for not `suffering fools gladly'". He said that the plaintiff had a "reputation for independence and holding and expressing clear views". Mr Orr said that he read the first publication and he was aware of the media articles which followed. He thought the suggestions made in the first publication were very serious and that it was "almost unbelievable" that the plaintiff would do these things. He considered that the mere fact of the publication would have a significant negative effect on the plaintiff's career. He contacted the plaintiff and spoke to him. The plaintiff seemed stressed and was upset about the attack on DIO and himself and the claim that in DIO product he only told the government what it wanted to hear. Mr Orr said that he considered that to be a very serious and damaging accusation. Mr Orr said that because he knew the plaintiff he did not believe the allegations to be true.
167. Dr Allan Hawke joined the Commonwealth Public Service in 1974. He was the Deputy Secretary Strategy and Intelligence in 1991 and the Chief of Staff in 1991 until August 1993. He was the Chief of Staff to the Prime Minister from August 1993 to March 1994. In 1994 he became Deputy Secretary Department of the Prime Minister and Cabinet, and then later in that year he became the Secretary of the Department of Veterans Affairs. He held that position until March 1996 when he became the Secretary of the Department of Transport and Regional Services. From October 1999 to October 2002 he was the Secretary of Defence. In 2003 he was the head of the Secretariat for the Review of the Aboriginal and Torres Strait Islander Commission. From August 2003 to February 2006 he was the High Commissioner to New Zealand. In February 2006 he retired from the Commonwealth Public Service and he became the Chancellor of the Australian National University. He continues to hold a number of significant appointments.
168. Dr Hawke met the plaintiff in or about December 1984. He continued to have contact with him from time to time thereafter. When Dr Hawke returned to the Department of Defence in October 1999 the plaintiff was the Director of the DIO. Dr Hawke worked closely with the plaintiff from October 1999 to October 2002. The plaintiff had a reputation in senior civilian levels of defence and the senior military positions in the Australian Defence Force. He had a reputation at the level of senior members of the intelligence community, Department of Foreign Affairs and Trade and also government ministers and some advisers. Dr Hawke said that the plaintiff had a good reputation and he had a reputation for being a forthright individual of great integrity. He had a reputation for "saying what his judgments were and calling it as he saw it". He was not the type of person to tailor his advice to suit the interests of his audience.
169. Dr Hawke said that the first and second publications would have damaged the plaintiff's reputation and the view of others as to his fitness for higher office. The publications were definitely going to tarnish the plaintiff's reputation for integrity and honesty.
170. Dr Hawke said that he read DIO product during his time with the Department of Defence and he did not observe any distortion therein driven by government policy. He did not think that DIO product was affected by or reflected the views of any pro-Jakarta lobby.
171. Air Chief Marshal Angus Houston is the Chief of the Defence Force. He joined the Royal Australian Air Force as a cadet pilot in 1970. He served on the Joint Operation Staff at Headquarters Australia during the Gulf War crisis in 1990/1991. He was the Director of Air Force Policy during 1992 and 1993. From 1997 to 1999 he was the Chief of Staff at Headquarters Australian Theatre. From 1999 to 2000 he was the Commander Integrated Air Defence System and from 2000 to 2001 he was Head of Strategic Command. From 2001 to 2005 he was Chief of the Air Force, and from July 2005 he was the Chief of the Defence Force.
172. Air Chief Marshal Houston first met the plaintiff in the mid-1990s. Other than one period of about 15 months, he has received DIO product from 1990 to the present time. During the period that the plaintiff was the Director of DIO, Air Chief Marshal Houston did not observe DIO product being expressed in a way that was simply telling the government what it wanted to hear. Nor did it "push" a pro-Jakarta line.
173. Air Chief Marshal Houston said that within the military and public service circles in which he moved, the plaintiff had an excellent reputation. He was known to be objective and professional in his approach. He gave his views freely and frankly. He had a reputation as a "talented, professional and effective Director of Defence Intelligence Organisation". He had a reputation for providing independent and objective advice. Air Chief Marshal Houston said that he had never seen any evidence that DIO product simply reported to the government what it wanted to hear. He said that the first and second publications had a "devastating effect" on the plaintiff's reputation and that was the case in both military circles and public service circles.
IV DEFAMATORY IMPUTATIONS
174. Defamation is a tort and as far as the publications in each State and Territory are concerned, the substantive law to be applied by the Court hearing the action is the law of the place where the tort was committed or the lex loci delicti. In each case that is where the publication of the defamatory matter took place. Substantive law is broadly defined as all provisions or rules which are not procedural or "rules which are directed to governing or regulating the mode or conduct of court proceedings" (Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 at 445 per Mason CJ). Questions about the kinds of damage, or amount of damages that may be recovered, are part of the substantive law and governed by the lex loci delicti. The foregoing propositions are clearly established by the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503.
175. Neither party suggested that as between the various States and Territories there were any differences in the substantive law to be applied in determining the question of the imputations conveyed by the first and second publications and the question of whether or not they were defamatory. The common law applies in relation to those issues. As far as defences are concerned, at the relevant time, there were different statutory defences in various States or Territories and as I must apply the lex loci delicti it will be necessary for me to consider the defences including differing statutory defences in each State or Territory. As far as damages are concerned, the common law governs most of the relevant issues, although in some States and Territories there are particular statutory provisions which must be applied. Those particular statutory provisions relate to the kinds of damages, or amount of damages recoverable and are therefore part of the substantive law to be applied.
176. In determining whether the imputations particularised by the plaintiff are conveyed by the first and second publications, the Court is to put itself in the position of the ordinary reasonable reader: Lewis v Daily Telegraph Ltd [1964] AC 234 at 259; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt CJ at CL at 165. The general characteristics of the ordinary reasonable reader are identified by Hunt CJ at CL in Marsden (1998) 43 NSWLR at 165 and I do not need to repeat them here.
177. The Court is entitled to look at the substance of the pleaded imputation rather than the precise words with which it is pleaded: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 533 per Brennan CJ and McHugh J, 545-6 per Gaudron and Gummow JJ and 579-581 per Kirby J; Random House Australia Pty Ltd v Abbott [1999] FCA 1538; (1999) 94 FCR 296 at 304-5, 316, 328-330. It is open to the Court to find that an imputation, which is not pleaded or particularised by the plaintiff, is conveyed by the defamatory matter if that imputation involves no more than a different nuance of meaning or variation of meaning or is less serious, provided the defendant is not prejudiced, embarrassed or unfairly disadvantaged by the departure.
A. The First Publication
1. Imputations (a), (b) and (c
178. It is convenient to deal with imputations (a), (b) and (c) together. A key concept in imputation (a) is the concept of abuse of position. The defendant submitted that this concept entailed serious and wilful dishonesty. The word "abuse" defined in The New Shorter Oxford English Dictionary On Historical Principles (Oxford: Clarendon Press, 1993) in various ways. Those meanings which appear to be relevant in the circumstances of this case are as follows:
1. An improper usage; a corrupt practice lme.
2. Improper use, perversion, ...
3. Misuse; make bad use of; wrongly take advantage of.
4. Misuse the confidence of; impose upon; deceive ...
179. The first publication clearly states that the plaintiff is the Director of the DIO. It does not state expressly that he is part of the "pro-Jakarta lobby" and, in any event, this is not the thrust of imputation (a). As I have said, I am entitled to find that an imputation substantially similar, or not substantially different, from the pleaded imputation arises instead of the pleaded imputation. The defendant did not contend otherwise. Subject to the other submission made by the defendant in relation to imputation (a) which is dealt with in the next paragraph, I find in relation to imputation (a) that rather than "abused his position", the imputation which is conveyed by the words used is properly expressed as "failed in his duties" because it is not suggested in the words complained of that the plaintiff had a corrupt or ulterior motive for allowing the distortion of intelligence assessments.
180. The other submission made by the defendant in relation to imputation (a) was that the words complained of did not carry any meaning concerning the DIO's duty to protect Australia's national interest. I reject that submission. Plainly, the words complained of convey the meaning that the DIO is part of Australia's intelligence services, that it must act in the national interest by providing independent and objective advice and that it fails to perform that duty if it distorts its advice. The imputation which I find arises is set out in [193].
181. Imputation (b) is an imputation which is less critical of the plaintiff than imputation (a) as I have found it to be. In my opinion it does not arise as a separate and distinct meaning conveyed by the words used.
182. A key concept in imputation (c) is the concept of a betrayal of duty. The defendant submitted that, like the concept of abuse of position, the concept of betrayal of duty entailed serious and wilful dishonesty. The word "betray" is defined in The New Shorter Oxford English Dictionary On Historical Principles (Oxford: Clarendon Press, 1993) in various ways. Those meanings which appear to be relevant in the circumstances of this case are as follows:
1. Give up treacherously (a person or thing to an enemy,[dagger] to punishment).
2. Be or prove false to; be disloyal to; disappoint the expectations of.
183. As with imputation (a), I make the observation that it is not suggested in the words complained of that the plaintiff had a corrupt or ulterior motive for allowing the distortion of intelligence assessments. Rather than "betrayed his duty", I find the imputation conveyed by the words used is properly expressed as "failed in his duties". The defendant also made the same submission as it had made in relation to imputation (a), namely, that the words complained of did not carry any meaning concerning the DIO's duty to protect Australia's national interest. I reject that submission for the reasons I gave earlier. While it is true that imputation (c) deals with the same broad topic as imputation (a), it is different because it makes no reference to a pro-Jakarta lobby and it identifies a particular subject matter of the alleged distorted intelligence assessments. The imputation which I find arises is set out in [193].
2. Imputations (d) and (e)
184. It is convenient to deal with imputations (d) and (e) together. The two imputations are the same except that (d) adds the consequence of "needlessly endangering the lives of those [ie Australian] soldiers".
185. A key concept in imputation (d) is abuse of position. In the case of this imputation I think the notion of an abuse of position does arise because to cause the flow of intelligence to be suspended because of, and only because of, personal frustration is a purpose totally foreign and alien to the purpose of the powers of the Director, and because it is said to have been the direct consequence of the Director's acts. On the other hand, I agree with the defendant's submission that the statement that the lives of Australian soldiers were thereby needlessly endangered is not conveyed by the words complained of.
186. I find that imputation (e) is made out, but imputation (d) is not made out.
3. Imputation (f)
187. As far as imputation (f) is concerned, I think it is conveyed by the words complained of. I have no doubt that the concept of an abuse of position is conveyed by the suggestion of preventing constructive and accurate criticism of the DIO's assessments because of mere personal frustration.
4. Imputation (g)
188. As far as imputation (g) is concerned, the defendant submitted that this imputation is not conveyed by the words complained of for three reasons, namely,
1. there is no suggestion in the words complained of that the fact that Lt-Col Collins' name unnecessarily appeared on the search warrant thereby contributed to ruining Lt-Col Collins' career;
2. there is no suggestion in the words complained of, of an abuse of power because the Toohey report indicates all the names supplied to the AFP were of persons who had access to the information; and
3. there is no suggestion in the words complained of that the plaintiff's motivation was his dislike of and frustration with Lt-Col Collins.
189. The first submission fails. There is no doubt that the suggestion that Lt-Col Collins' career had been ruined is conveyed by the words complained of. The allegation in the imputation is that the plaintiff's acts "contributed" to that consequence, not that they were the cause. Furthermore, it should not be overlooked that the first publication includes Capt Toohey's finding that Lt-Col Collins' standing in the intelligence community had been greatly diminished following his "public naming" on the search warrant "to the point of him being ostracised and/or held up as a laughing stock in some quarters".
190. The second submission fails. There is no doubt that the words complained of convey the meaning that the plaintiff was involved in passing on to the AFP Lt-Col Collins' name, that that caused Lt-Col Collins to be "unnecessarily" (Capt Toohey), or "wrongly" (Mr Lyons), named on the search warrant and that the plaintiff did that because he disliked Lt-Col Collins. That asserted conduct by the plaintiff would be conduct foreign and alien to his powers.
191. The third submission fails. The motivation of dislike and frustration is conveyed by the words complained of. Captain Toohey refers to the plaintiff's motive as one of dislike in conclusion or finding of fact 131, and to the plaintiff's frustration in a related matter (conclusion or finding of fact 132) and once the plaintiff's involvement in the naming of Lt-Col Collins is found to be conveyed, the words complained of convey the meaning that dislike and frustration was one of the plaintiff's motives.
192. I find that imputation (g) is conveyed by the words complained of.
193. The imputations which I find are conveyed by the first publication are as follows:
1. [The plaintiff] failed in his duties as Director of the [DIO], by allowing a "pro-Jakarta lobby" within DIO to distort intelligence assessments so as to be compatible with the policy of the government of the day, instead of ensuring that DIO fulfilled its duty to protect Australia's national interest by providing independent and objective intelligence to the Australian government.2. [The plaintiff] failed in his duties as Director of the [DIO] to protect the Australian national interest, by allowing intelligence assessments concerning atrocities and terrorist activities committed by the Indonesian military in East Timor to be distorted so as to be compatible with the policy (accommodating of the Indonesian government) of the Australian government of the day.
3. [The plaintiff] abused his position as Director of the [DIO] in that, out of mere personal frustration with the activities of Collins in East Timor, he deliberately caused the flow of intelligence to Australian soldiers in East Timor during the Interfet military operation to be suspended for 24 hours.
4. [The plaintiff] abused his position as Director of the [DIO] in that, out of mere personal frustration with the activities of Collins in East Timor, he tried to prevent Collins from continuing to raise constructive and accurate criticism of DIO's assessments.
5. [The plaintiff] abused his position as Director of the [DIO] in that, merely because of his dislike of and frustration with a leading intelligence analyst, namely Collins, he participated in the passing of Collins' details to the Australian Federal Police, which resulted in Collins being unnecessarily named on a widely publicised AFP search warrant, thereby contributing to ruining Collins' career.
B. The Second Publication
194. I find that the one imputation alleged to arise from the words complained of does arise. The defendant's only submission in relation to this imputation, namely, that the concept of abuse of position did not arise from the words complained of, must be rejected for the same reasons I rejected the similar submission in relation to imputations (d) and (e) in connection with the first publication.
195. The imputation conveyed by the second publication is as follows:
[The plaintiff] abused his position as Director of the [DIO] in that, because of a mere personal dispute with Collins, he deliberately caused the flow of intelligence to East Timor during the Interfet operation to be suspended for 24 hours, thereby needlessly endangering the lives of Australian soldiers in East Timor.
196. Clearly, the imputations as I have found them are defamatory of the plaintiff and I did not understand the defendant to contend otherwise.
V DEFENCES
197. As I have said, the first and second publications were published in each State and Territory. The defendant pleaded different defences for publications in different States and Territories, although there are defences common to each State and Territory.
198. The common law defence of qualified privilege has been raised in relation to the publications in each State and Territory. I will first examine that defence including the extended category of qualified privilege enunciated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ("Lange"). I will then examine the related defences of statutory qualified privilege in New South Wales (s 22 of the Defamation Act 1974 (NSW)) and various defences of qualified protection in Queensland (Defamation Act 1889 (Qld)) and Defamation Act 1957 (Tas)). I will then consider the defence of fair comment and the statutory no negligence defence in the Australian Capital Territory.
A. The Defence of Qualified Privilege at Common Law
199. The defendant submitted that on the facts both the traditional category of qualified privilege and the extended category of qualified privilege were made out. The defendant accepted that to make out the extended category, it must prove, as one element, that its conduct in making the publication was reasonable. There is no such requirement in the case of the traditional category of qualified privilege. Both categories of the defence are defeated by malice. I will consider each of the traditional and extended categories in turn.
1. The Traditional Category
200. It is well-established that the defence of qualified privilege is available to a defendant who publishes a defamatory statement "in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned" (Toogood v Spyring [1834] EngR 363; (1834) 1 Cr M & R 181 at 193; [1834] EngR 363; 149 ER 1044 at 1049-50 per Parke B) where the statement is made to a person with "a corresponding interest or duty to receive it" (Adam v Ward [1917] AC 309 at 334 per Lord Atkinson. See also Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 ("Bashford") at 372-3 [9] per Gleeson CJ, Hayne and Heydon JJ). In such circumstances, there is said to be an occasion of qualified privilege, which operates as a defence, provided that the occasion is not abused. The occasion is abused if the defendant is actuated by malice.
201. Traditionally, the common law has been reluctant to recognise any duty or interest to publish defamatory statements to the public at large, as distinct from publication to a limited audience. Often, the defence will not assist a media outlet for want of the requisite reciprocal interest or duty: see, for example, Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259. The cases in which the defence has succeeded in such circumstances are regarded as exceptional: see, for example, Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503; Adam v Ward [1917] AC 309. There is, however, no rule capable of mechanical application denying media outlets recourse to the traditional category of qualified privilege and, in principle, it remains available. Each case requires "a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication": Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 at 116 per Dixon J. See also Bashford 218 CLR at 373 [10] per Gleeson CJ, Hayne and Heydon JJ.
202. It is necessary, therefore, to explain the basis upon which the defendant sought to establish the traditional category of the defence. The defendant advanced the traditional category upon two independent bases. First, it submitted that its "special knowledge" of the contents of the Toohey report conferred upon it the requisite duty or interest to publish the first and second publications. Secondly, it submitted that in publishing a complete government report, it attracted the defence. It is convenient to consider each basis separately.
(a) Special Knowledge
203. The defendant referred to the reasons of McHugh J in Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 ("Stephens") and it submitted that his Honour held that the defence of qualified privilege was available, notwithstanding publication to a wide audience, where the defendant had "special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties" (at 265). McHugh J recognised that this special knowledge conferred upon its holder a duty or interest correlative to the general public's "legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials" (at 264). His Honour concluded (at 265):
Accordingly, it is now appropriate for the common law to declare that it is for "the common convenience and welfare" of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers.
The defendant also placed emphasis on one "example", which McHugh J subsequently gave, of a person who might have the requisite special knowledge, namely an investigative journalist.
204. As the plaintiff correctly submitted, these remarks were strictly unnecessary to McHugh J's decision, the basis of which was that the impugned statements in the case were comment, not fact, and hence outside the scope of the defence of qualified privilege. Further, and in any event, McHugh J was in dissent in Stephens [1994] HCA 45; 182 CLR 211. His Honour's reasons were not supported by the majority of the Court. Counsel for the defendant acknowledged those matters, but submitted that the unanimous judgment in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ("Lange") adopted McHugh J's formulation of the qualified privilege defence. It is important, for clarity, to emphasise that the defendant's submission was that Lange endorsed this formulation of the traditional category in addition to declaring the extended category for discussion of government and political matters. For the reasons which follow, I do not think that is a correct analysis of the decision in Lange.
205. It is true that the Court in Lange 189 CLR 520 referred with approval to a passage from McHugh J's reasons in Stephens [1994] HCA 45; 182 CLR 211 at 264. Counsel for the defendant placed great reliance upon the quotation and I will set it out in full (Stephens 182 CLR at 264; Lange 189 CLR at 570-1):
In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.
206. This passage addresses those factual circumstances of modern Australian society, which underlie the interest of the general public in receiving certain information. It is not McHugh J's formulation of the common law rule from Stephens [1994] HCA 45; 182 CLR 211 which has been adopted by the Court in Lange. Counsel for the defendant placed further emphasis on a subsequent passage in Lange 189 CLR at 571:
... the common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh J referred. The common law rules of qualified privilege will then properly reflect the requirements of ss 7, 24, 64, 128 and related sections of the Constitution.
Again, the Court has recognised "the varied conditions" which McHugh J had identified in Stephens [1994] HCA 45; 182 CLR 211, but it does not follow that the Court adopted the precise manner in which McHugh J would have developed the common law in the earlier case. In particular, the Court makes no mention of the "special knowledge" which McHugh J, in dissent in Stephens [1994] HCA 45; 182 CLR 211, held to confer the requisite duty to publish.
207. In developing the common law defence, the Court in Lange 189 CLR 520 did not, contrary to the defendant's submission, effect a bifurcation in the law such that publishers of defamatory statements made in the course of discussion of government or political matters may avail themselves of both the defence as expressed by McHugh J in Stephens [1994] HCA 45; 182 CLR 211 and the extended category of qualified privilege. In fact, after adopting what McHugh J had said in Stephens [1994] HCA 45; 182 CLR 211 about the factual circumstances of modern Australian society and after declaring the interest of each member of the Australian community in disseminating and receiving relevant information, the Court said (at 571) that "[t]he interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege" and that possibly "the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution" (my emphasis). Subsequently, the Court said (at 572) (my emphasis):
Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.
208. Reasonableness of conduct, as a higher standard than honesty of conduct, which, the Court held, is appropriate for cases of publication to a limited audience but not for cases of publication to the general public, was propounded by the Court as a part of those "conditions upon which [the defence] should depend". Reasonableness of conduct was not propounded as an element of a separate defence for discussion of government and political matters. It was attached to "the extended category of common law qualified privilege", which is the one and same defence that the Court had recognised in reliance upon McHugh J's dissenting opinion in Stephens [1994] HCA 45; 182 CLR 211. The only bifurcation concerns the width of the audience receiving the defamatory statement. Provided the statement concerns a government or political matter, the extended category of the defence of qualified privilege is attracted. But, where a defamatory statement is communicated to a limited audience, the defendant need not prove reasonableness of conduct, whereas he must do so if communicated to a wide audience: Lange 189 CLR at 573. That distinction cannot assist in the present case where it is uncontested that the audience was not a limited one.
209. The extended category of the defence will be considered below (at [219] et seq). For now, it suffices to conclude that there is no additional common law defence based upon the special knowledge which the defendant had of the Toohey report. Other than the government and political aspect to the impugned publications, there is present no other feature recognised to bring a matter within the exceptional categories of case in which publications to the general public attract the defence of qualified privilege.
(b) Publication of a Government Report
210. The second basis upon which the defendant sought to establish the traditional category of qualified privilege was that the first publication constituted publication of a complete government report. The defendant relied upon a passage in the reasons of Brennan J in Stephens 182 CLR at 246-253 as authority for the submission. In that extended passage, to which I refer without setting out, Brennan J discussed the defence of fair and accurate report.
211. Prior to the middle of the nineteenth century, fair and accurate report was, like the law of fair comment, "regarded as part of the newly invented doctrine of qualified privilege": Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183 at 215 per Dawson, McHugh and Gummow JJ. But it is clearly regarded today as a distinct defence. In Bashford 218 CLR at 379-80 [32]-[33], Gleeson CJ, Hayne and Heydon JJ said (footnotes omitted):
The defences of qualified privilege and fair and accurate report have developed separately and differently. That separate development may have occurred only in the nineteenth century, but it was inevitable ... Because the two defences are so different, and are directed to radically different problems, one is not to be understood as superior to the other. Each has its proper work to do.
212. Gummow J explained (at 412 [125]-[126]) that the term "qualified privilege" is "merely descriptive of those factual circumstances (many in number) which the law deems privileged to a qualified extent" and that "categories of qualified privilege may differ in the considerations which found them". His Honour then said (at 412 [127]):
It follows that the circumstance that the publication of a fair and accurate report of judicial proceedings and the publication of a defamatory imputation pursuant to a relevant reciprocal duty or interest both fall under the umbrella of `qualified privilege' does not mean that the defences may not be available in respect of the one imputation.
213. Kirby J said of the two defences (at 432 [183 ]) (footnotes omitted):
From their respective origins at common law (and in the manner of the development of that body of law), the defences grew out of different needs, occasioning different judicial holdings. They supplemented, and did not contradict, one another. Obviously, where the more particular defence (absolute privilege or fair and accurate report) applied, it was commonly unnecessary to decide fine points arising from the possible application of a more general defence of qualified privilege. But if, because the requirements of the specific defence were not met, it became essential to invoke the general common law of qualified privilege, there was no reason of legal principle why it should be unavailable.
214. In my opinion the defendant has not pleaded the common law defence of fair and accurate report, which is properly understood as distinct from the defence of qualified privilege, at least insofar as the latter defence is based upon a reciprocal interest or duty. The defendant's particulars and further and better particulars in relation to the defence of qualified privilege raise only the alleged reciprocity of interest or duty. In those circumstances, I do not think the defendant ought to be allowed to raise the more specific defence.
215. Even if, contrary to this conclusion, the defendant should be allowed to raise the defence of fair and accurate report, the first and second publications go well beyond a fair and accurate report of the Toohey inquiry and, indeed, it is highly doubtful whether the Toohey inquiry attracts the protection of the defence of fair and accurate report in any event. I say that for a number of reasons. First, the Toohey report was a report of an inquiry which by law was not to be held in public. Secondly, the defendant did not publish the whole of the Toohey report and the part it omitted to publish, being Annexure A, was not insignificant. Annexure A referred to, among other things, the Blick inquiry and the conclusions reached by Mr Blick. Capt Toohey saw the need to make comments about those matters and include those comments as an annexure to his report. Thirdly, even if the aforesaid difficulties could be overcome, the defendant did more than publish a fair and accurate report of the inquiry conducted by Capt Toohey. In addition to the Toohey report the defendant published articles by Mr Lyons which adopted Capt Toohey's conclusions or findings, went beyond them and contained factual inaccuracies over and above the factual inaccuracies in the Toohey report. I refer to my conclusions in [65]-[74] and [85]-[88] above.
216. For these reasons a defence of a fair and accurate report would fail on the facts.
217. Insofar as the defendant might be understood to have submitted that the reasons for decision of Brennan J in Stephens 182 CLR at 246-253 support a finding of a basis for the traditional category of qualified privilege distinct from the defence of fair and accurate report, the submission ought to be rejected.
(c) Conclusion in Relation to the Traditional Category
218. The defendant published its statements to a large audience and the usual result in such cases follows. The occasions of the first and second publications were not privileged in the traditional sense. There is no authority to support the defendant's submission that its special knowledge of the Toohey report attracted the defence. On the contrary, the unanimous judgment of the High Court in Lange 189 CLR 520 makes clear that in the limited circumstances where publication to a large audience can be said to occur on an occasion of qualified privilege (that is, a publication of or concerning government or political matters) the defendant must prove the reasonableness of its conduct in all the circumstances. Nor does the attempted characterisation of the publication as a publication of a "complete government report" assist the defendant. The defence of fair and accurate report has not been pleaded and even if it had been, it would fail on the facts
2. The Extended Category
219. The defendant contended that the first and second publications were of and concerning government or political matters, and that its conduct in making the publications was reasonable. The plaintiff did not argue that the first and second publications were not of and concerning government or political matters but, rather, he submitted that the defendant's conduct in making the publications was not reasonable or, at least, that the defendant had not shown that it was reasonable. In the alternative, the plaintiff contended that the extended defence of qualified privilege was defeated by the fact that in publishing the first and second publications the defendant was actuated by malice.
220. The onus is on the defendant to establish that its conduct in making the first and second publications was reasonable. In considering whether the defendant's conduct was reasonable, the Court must have regard to all the circumstances surrounding the publications. In Lange, the High Court identified the matters which are relevant to the question of reasonableness in the ordinary case. The Court said (at 574) (footnotes omitted):
Whether the making of a publication was reasonable must depend upon all the circumstances of the case. 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.
221. As I have said, the defendant did not call any witnesses and that means that conclusions as to its state of mind must be a matter of inference from all the circumstances put before the Court. The exact relationship between the defendant and Mr Lyons in April 2004 was not established by the evidence; the defendant did not dispute that he was its agent at relevant times.
222. I should say at this point that I find none of the imputations, which I have found were conveyed, to be true. As to the first and second imputations in the first publication, there was no evidence that intelligence assessments were distorted in the manner alleged. The evidence before the Court which I have summarised above [127] to [173] is to the contrary and, as I have said, I accept that evidence. As to the third imputation in the first publication, and the imputation in the second publication, there was never any suspension of the flow of intelligence as distinct from a loss of access to one database on an intelligence system. Furthermore, I accept the plaintiff's evidence that he did not "cause", let alone "deliberately cause", a suspension of access to the database. Furthermore, I accept Gen Cosgrove's evidence that the loss of access to the database did not endanger lives of Australian soldiers in East Timor. As to the fourth imputation in the first publication, it follows from my finding in relation to the distortion of intelligence assessments that Lt-Col Collins' criticisms of DIO assessments were not accurate and there is no evidence before me to suggest that, albeit inaccurate, they were constructive. Nor is it correct to suggest that the plaintiff tried to "prevent" Lt-Col Collins from doing something. There is nothing to suggest that, considered in context, the plaintiff did anything inappropriate. As to the fifth imputation in the first publication, I accept the plaintiff's evidence that he did nothing to "pass on" Lt-Col Collins' details to the Australian Federal Police. Furthermore, there is no evidence before me that would enable me to find that Lt-Col Collins' name was "unnecessarily" placed on the AFP search warrant.
223. Before considering the specific matters identified by the High Court in Lange as relevant to the question of reasonableness, a number of general points should be noted.
224. First, the defendant abandoned the plea of justification shortly prior to trial. Other than evidence by way of documents and cross-examination of the plaintiff relevant to the third imputation in the first publication (and the imputation in the second publication) and the fourth imputation, the defendant put forward no evidence in support of the truth of the imputations.
225. Secondly, it would have been apparent to the defendant that the statements about the plaintiff's conduct in the two publications were very serious and reflected adversely on the plaintiff in a significant way.
226. Thirdly, the defendant was aware, or ought to have been aware, that Capt Toohey's inquiry was not conducted in public. Each of the transcripts which were in the possession of the defendant is headed "Transcript in Confidence". Furthermore, an examination of the Defence (Inquiry) Regulations would have revealed that in fact the inquiry was not to be conducted in public (reg 72).
227. Fourthly, the defendant was aware that Capt Toohey had not had access to any documents classified for disclosure purposes higher than "confidential" and possibly, although this is not entirely clear, higher than "restricted". The defendant was aware from the transcript of interview between Capt Toohey and Gen Cosgrove that the rules of evidence did not apply to Capt Toohey's inquiry and that meant, for example, that leading questions and opinion evidence were permissible.
228. Fifthly, certain aspects of the Toohey report would have been obvious to any ordinary reader. It would have been apparent to such a reader that Lt-Col Collins' redress of grievance did not directly raise an allegation of a "pro-Jakarta lobby" or of a suspension to the flow of intelligence or (and this is less clear) of an attempt to muzzle Lt-Col Collins. That is not to say that those allegations may not have been relevant to explain why certain conduct occurred (assuming it did occur); it simply means that they were not allegations which were directly raised by Lt-Col Collins. Another important "feature" of the Toohey report, which would have been apparent to the ordinary reasonable reader, is that despite its apparent detail it is by no means easy to determine the evidence which relates to, and formed the basis of, each particular conclusion or finding of fact.
229. There is no evidence to suggest that Capt Toohey had any DIO assessments. There is no reference to any in his list of documents, he does not quote from any in his report and he did not ask the plaintiff for any such reports. There is no suggestion Mr Lyons had access to any DIO assessments other than those he had when he wrote the articles which were published in 1999.
230. I turn now to consider the various matters identified by the High Court in Lange as relevant to the requirement of reasonableness.
(a) Did the Defendant Have Reasonable Grounds for Believing the Imputations to Be True?
231. As far as those imputations which concern the distortion of intelligence assessments (that is, imputations one and two in the first publication), I find that the defendant did not have reasonable grounds to believe that the imputations were true. In fact, I think the defendant was at least wilfully blind as to the truth or falsity of the imputations.
232. Before explaining my reasons for this finding it is convenient to say something about malice, knowledge of falsity, wilful blindness and recklessness. These concepts were discussed by the High Court in the recent decision of Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1. One of the issues before the Court in that case was whether the lack of an honest belief in the truth of the imputations conveyed by the defamatory matter constitutes malice. The High Court held that it did not: at 14 [15] per Gleeson CJ; at 32 [78] per Gaudron, McHugh and Gummow JJ; at 79 [230] per Hayne J. In fact, as Gaudron, McHugh and Gummow JJ said, even knowledge of falsity is not of itself malice. Malice is an improper motive or motive or purpose foreign to the occasion giving rise to the privilege. At the same time, knowledge of falsity is almost conclusive evidence of malice (at 32 [78]). There is a form of recklessness as to the truth or falsity of the imputations which amounts to wilful blindness, and wilful blindness is equivalent to knowledge of falsity. The form of recklessness must be a high level of recklessness or gross recklessness: Gaudron, McHugh and Gummow JJ at 34 [84]; R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 470-471; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431; Clark v Molyneux (1877) 3 QBD 237. At the same time, it must not be forgotten that, as Gaudron, McHugh and Gummow JJ said in Roberts v Bass 212 CLR at 34 [84]:
In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive.
233. In 1999, Mr Lyons had read a number of "leaked" DIO assessments and it may be inferred from the articles he wrote that he considered that the assessments provided frank and fearless advice to the Australian Government. He criticised the Government for not heeding the advice or at least concealing the advice from the Australian public. He had no other DIO assessments and he had no reason to believe Capt Toohey had seen any other DIO assessments. In my opinion, he was reckless to the point of wilful blindness as to the truth or falsity of the imputations concerning the distortion of intelligence assessments. This conclusion is only strengthened by the following. First, Col Tracey's report by itself would cause an ordinary reasonable reader to pause before accepting Capt Toohey's conclusions or findings of fact. It is no answer to say that Col Tracey's report is somehow counterbalanced by Col Brown's report. Col Tracey's report identifies quite fundamental deficiencies in the Toohey report. Secondly, Mr Lyons would have seen that Mr Blick had conducted an inquiry and found that allegations of a "pro-Jakarta lobby" did not "stand up to objective scrutiny". Mr Lyons would have been aware from the transcript of the interview between Capt Toohey and Mr Blick that Capt Toohey had described the Inspector-General of Intelligence and Security as a "standing Royal Commission" into the six security and intelligence agencies. As I have said, there was reference to Mr Blick's conclusions in an Annexure A to the Toohey report and that annexure was not published by the defendant. Thirdly, Mr Lyons would have seen that the allegation of a distortion of intelligence assessments was not directly raised by Lt-Col Collins in his redress of grievance.
234. The other imputations in the first publication and the imputation in the second publication can be dealt with together. As to these imputations I find that the defendant by its agent, Mr Lyons, did not have reasonable grounds for believing the imputations to be true. Mr Lyons had no personal knowledge of the matters. As I have said, he was wilfully blind as to the truth or falsity of the imputations involving the distortion of the intelligence assessments. For reasons I will give, in the context of my discussion of malice what led to the first and second publications (in particular, the first publication) was the suggestion of the distortion of intelligence assessment. That was the major theme and the subject upon which public interest was likely to focus. In view of my finding as to the defendant's state of mind as to the distortion of the intelligence assessments and the other matters referred to below I do not think that it can be inferred that the defendant had reasonable grounds for believing the other imputations to be true. The other matters are these:
(1) The seriousness of the other imputations.
(2) The fact that Col Tracey expressed the opinion the Toohey report was fundamentally flawed.
(3) The fact that Mr Blick found that there was no policy decision to withdraw access to the database and that was known to Mr Lyons.
(4) The fact Capt Toohey did not question the plaintiff at any length about the withdrawal of access to the database and that it was in fact the plaintiff who mentioned the incident in passing. This would have been apparent to the defendant from the transcript of interview.
(5) There is no evidence to suggest that Capt Toohey had seen the letter written by the plaintiff dated 22 December 1999, which was said to form part of the attempt to "muzzle" Lt-Col Collins. In relation to the meeting between Mr Blick, Lt-Col Collins and the plaintiff, it would have been apparent to Mr Lyons that three of the persons present at the meeting (including Mr Bryan who was the note-taker) said that the plaintiff had in fact denied targeting Lt-Col Collins. It is also to be noted that the two officers who were said to have warned Lt-Col Collins to watch his back "because the knives [were] out in Canberra for [him]" namely, Col Patrick Gallagher and Lt-Col Lester Sutton were interviewed by Capt Toohey. Capt Toohey refers to what each of them told him but there is no suggestion in the Toohey report that they confirmed this conversation.
(6) In relation to the suggestion that the plaintiff passed on Lt-Col Collins' name to the AFP, resulting in him being unnecessarily named in the AFP search warrant, it would have been apparent to Mr Lyons that there was no specific evidence in support of the finding. Capt Toohey deals with the issue in paragraphs 51 to 69 inclusive and 127 to 129 inclusive, of his report. There was no specific evidence implicating the plaintiff in the passing on of Lt-Col Collins' name. There is nothing in the transcripts, which were in the possession of Mr Lyons, which advanced the matter. In fact, it was never put to the plaintiff by Capt Toohey that he had been responsible for passing on Lt-Col Collins' name. More than that, Capt Toohey in fact asked the plaintiff for his advice as appears from the following passage in the transcript of the interview of the plaintiff by Capt Toohey.
Q118: Frank, I will just stop you. I'd really value your advice on this. Should I talk to the previous DDSEC-Army and try and find out how on earth his name - I have to find out how his name got on that warrant.A: Well, I can give you ...
Q119: Who would you suggest I talk to?
A: I don't know how his name got on the warrant.
Q120: No.
A: But I can make an educated guess about the way hi [sic] which that was done ...
Q: Yes
A: But that's my suspicion about how all this happened. Or my educated guess, if you like. Now, the only person - two people who can answer that question if you needed to, I guess the most appropriate person to ask the question would be Margo McCarthy who is now head of the Defence Security Authority.
(b) Did the defendant take proper steps, so far as they were reasonably open, to verify the accuracy of the imputations?
235. As I have already said, it would have been absolutely plain to the defendant that the first and second publications made very serious allegations about the plaintiff. The defendant's media release to other media outlets (see [83] above) makes it absolutely plain that the defendant was aware of this as do the terms of the publications themselves.
236. The defendant was working on the story from February 2004 onwards and Mr Lyons discussed the Toohey report in detail with his managing editor and lawyers approximately two weeks prior to 11 April 2004.
237. The defendant did not attempt to contact any person, other than Lt-Col Collins and Capt Toohey, with a view to ascertaining or checking the accuracy or reliability of any of the statements contained in the first publication or in the second publication. In my opinion, the defendant did not take proper steps, so far as they were reasonably open, to verify the accuracy of the imputations.
(c) Did the Defendant Believe the Imputations that Were Conveyed to be Untrue?
238. As I have said, the defendant was, at least, wilfully blind as to the truth or falsity of the imputations concerning the distortion to intelligence assessments. I do not think the evidence goes so far as to support an inference to that effect in relation to the other imputations. On the other hand, the defendant has not established that he had an honest belief in the truth of the other imputations. Of course as I have already said, in the case of all the imputations the defendant did not have reasonable grounds to believe that they were true.
(d) Did the Defendant Seek a Response from the Plaintiff and Publish the Response Made, If Any?
239. The defendant did not seek a response from the plaintiff before the first and second publications. There was no reason why he could not have done so. This is not a case where it can be said that it was unnecessary for the defendant to give the plaintiff an opportunity to respond. It was not enough for the defendant to rely on the fact that it had the transcript of the plaintiff's interview by Capt Toohey. That interview did not deal, either at all or adequately, with a range of topics, which should have been raised with the plaintiff.
240. Having regard to the criteria identified by the High Court in Lange 189 CLR 520 the defendant has not shown that its conduct was reasonable.
241. The plaintiff submitted that authorities on the question of reasonableness under s 22(1)(c) of the Defamation Act 1974 (NSW) also provided guidance as to the meaning of the requirement in the context of the extended category of the defence of qualified privilege. At the time of the decision in Lange 189 CLR 520, s 22 was in the following terms:
22 Information(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.
(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.
242. Section 22 was amended to add subs (2A) and that amendment took effect in February 2003. Subsection (2A) is in the following terms:
(2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such matters as the court considers relevant:(a) the extent to which the matter published is of public concern,
(b) the extent to which the matter published concerns the performance of the public functions or activities of the person,
(c) the seriousness of any defamatory imputation carried by the matter published,
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts,
(e) whether it was necessary in the circumstances for the matter published to be published expeditiously,
(f) the sources of the information in the matter published and the integrity of these sources,
(g) 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 publisher to obtain and publish a response from the person,
(h) any other steps taken to verify the information in the matter published.
243. In Lange, the Court made reference to s 22 of the New South Wales Act as it was in 1997. The Court said (at 573) (footnotes omitted):
Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters.
244. A little later, the Court said (at 575):
Nevertheless, having regard to the necessity to protect reputation, the law of New South Wales goes no further than is reasonably appropriate and adapted to achieve the protection of reputation once it provides for the extended application of the law of qualified privilege. Moreover, even without the common law extension, s 22 of the Defamation Act ensures that the New South Wales law of defamation does not place an undue burden on communications falling within the protection of the Constitution. That is because s 22 protects matter published to any person where the recipient had an interest or apparent interest in having information on a subject, the matter was published in the course of giving information on that subject to the recipient, and the conduct of the publisher in publishing the matter was reasonable in the circumstances.
245. In my opinion, I can look at the authorities dealing with reasonableness in s 22(1)(c) and the factors in s 22(2A) when considering the requirement of reasonableness in the context of the extended category of the defence of qualified privilege (see the reasons of Hoeben J in Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; (2006) 68 NSWLR 150 at 164 [61]).
246. In Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374, the Court of Appeal in New South Wales considered the requirement of reasonableness in s 22(1)(c) before the amendment to insert subs (2A). Hunt A-JA (with whom Samuels JA agreed) identified the following matters as relevant (at 387-388):
(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable ...(2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case, and perhaps also that discussed in Collins v Ryan) have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.
...
(4) The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.
247. Insofar as these matters inform the requirement of reasonableness as part of the extended category of the defence of qualified privilege, I note the following:
(1) The imputations which I have found were conveyed by the first and second publications were very serious;
(2) I have no evidence as to what, if any, imputations the defendant intended to convey in the first and second publications, and I have no evidence as to whether he did or did not believe in the truth of the imputations. There were some particulars given by the defendant as to the imputations it believed to be true, but these particulars were not supported by evidence;
(3) For the reasons already given, I do not think that the defendant exercised reasonable care to ensure that its conclusions or those of Capt Toohey were correct and it did not make sufficient inquiries or conduct sufficient checks concerning the accuracy of its sources.
248. Insofar as the matters in subs (2A) inform the requirement of reasonableness in the extended category of the defence of qualified privilege, again, it is to be noted that the defamatory imputations were very serious. As I have said, it is fair to say that the first and second publications conveyed the meaning that Capt Toohey's conclusions were proven facts. There is no evidence to suggest that there was a need for the first or second publications to be published quickly. For the reasons I have already given, the features of the Toohey report were such that the defendant was obliged to go behind the report and test the sources of the information. Other than speaking to Lt-Col Collins, the defendant did not do that. The first and second publications did not contain the substance of the plaintiff's side of the story and no attempt was made prior to the first and second publications to obtain and publish a response from the plaintiff. The defendant did not take adequate steps to verify the information in the first and second publications.
3. Malice
249. The plaintiff alleged that the first and second publications were actuated by malice. The defence of qualified privilege at common law, both the traditional category and the extended category, fails for the reasons I have given. It is not strictly necessary to consider malice in that context. For reasons I will give, the defence of fair comment on a matter of public interest fails for reasons apart from malice so that it is not strictly necessary to consider it in that context. However, the defendant's state of mind in publishing the first and second publications is relevant to certain defences under the Defamation Act 1889 (Qld) and the Defamation Act 1957 (Tas) and it is relevant to the question of whether the plaintiff is entitled to an award of exemplary damages. I will therefore consider malice. The plaintiff pleaded the matters he relied on to establish malice on the part of the defendant. They were as follows:
1. The defendant published the matter complained of and the imputations therein knowing them to be false or with reckless indifference as to their falsity;
2. The defendant published the matter complained of and the imputations contained therein without any honest belief in their truth;
3. The matter complained of, and the imputations contained therein were false;
4. The defendant failed to make any or any reasonable enquiries particularly of the plaintiff, to establish the truth with respect to the matters complained of and the imputations therein;
(e) The defendant made no attempt to contact the plaintiff prior to the publication of the matter complained of so as to allow him an opportunity to challenge the accusations against him contained therein;
5. The falsity of the matters complained of and the imputations therein was readily ascertainable by the defendant;
6. The prominence accorded to the matter complained of and its extravagant and sensational language, were disproportionate and irrelevant to any occasion of qualified privilege or qualified protection, the existence of which is denied. The defendant published the matters complained of in circumstances where it knew, and the plaintiff rightfully expected, that the Toohey report and the plaintiff's participation in the Toohey Inquiry, were to be treated with complete confidentiality;
7. The defendant's failure to apologise despite being requested to do so by the plaintiff's solicitors;
8. The defendant's conduct through its solicitors on 10 May 2004 in justifying the allegations contained in the matter complained of when any reasonable investigation of them would have revealed them to be false;
9. The defendant's conduct in publishing the matters complained of based upon the Toohey Report knowing the Toohey Report to have been severely and independently discredited by a later report by Col Richard Tracey QC.
10. The defendant was motivated by a desire to injure the plaintiff in his reputation, and to increase the impact, and circulation, of its own magazine by gratuitously inserting sensational and discreditable allegations against the plaintiff, and this is to be inferred from the matters particularised in 1-6 above.
250. I refer to my discussion of the decision of the High Court in Roberts v Bass [2002] HCA 57; 212 CLR 1. In my opinion, the defendant in publishing the first and second publications was actuated by an improper motive and therefore malice. I find that the improper motive was a desire to publish a sensational story and thereby enhance the reputation of the magazine and the author of the articles, and to increase the circulation of the magazine. I do not think there was any particular desire to injure the plaintiff.
251. I have already set out my reasons for concluding that in relation to the imputations involving the distortion to intelligence assessments the defendant was, at least, wilfully blind as to the truth or falsity of the imputations and that as to the other imputations I am unable to find that the defendant had an honest belief in their accuracy. As I have said, what led to the two publications and the alleged public interest in the matters they raised was the allegation relating to the distortion of intelligence assessments. It seems to me that that is clear from the publications themselves, but is put beyond any doubt by the fact that in its own media release that was the matter and indeed the only matter highlighted by the defendant.
252. I have already found that the imputations were false and that the inquiries made by the defendant before the publications were inadequate. I think that for the most part the fact that there was insufficient, indeed flimsy evidence, to support the imputations or contrary evidence would have been readily apparent upon reasonable inquiry. I have already referred to the language used in the publications (see [65]-[70] and [85] above) and I have no doubt the defendant knew that the inquiry conducted by Capt Toohey was not a public inquiry. By reason of what Capt Toohey told Mr Lyons, the defendant knew that the Toohey report was "classified Department of Defence property". There is no need for me to rely on the absence of an apology or the attempt to justify to make a finding of malice. It is fair to say that Col Tracey's criticisms of Capt Toohey's report are very strong and trenchant.
B. The Statutory Defence of Qualified Privilege in New South Wales
253. For reasons I have already given in connection with the extended defence of qualified privilege, the defendant has failed to establish that his conduct in publishing the first and second publications was reasonable within s 22(1)(c) and therefore this defence fails.
C. The Statutory Defences of Qualified Protection in Queensland and Tasmania
254. The relevant provisions are s 16(1)(c), (e) and (h), s 16(2) and s 17 of the Defamation Act 1889 (Qld) and s 16(1)(c), (e) and (h), s 16(2) and s 19 of the Defamation Act 1957 (Tas). The provisions are in substantially the same terms save for s 16(1)(h) of the Queensland Act which includes the words "and if, so far as the defamatory matter consists of comment, the comment is fair". Those words do not appear in s 16(1)(h) of the Tasmanian Act. Neither party suggested that the differences in wording between the relevant sections was material. It is sufficient for me to set out the Queensland provisions and they are as follows:
16 Qualified protection - excuse(1) It is a lawful excuse for the publication of defamatory matter -
...
(c) if the publication is made in good faith for the protection of the interests of the person making the publication, or of some other person, or for the public good;
...
(e) if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances;
...
(h) if the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.
(2) For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.
...
17. Good faith
When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging such absence.
255. I start with some general observations on subs 16(1)(c), (e) and (h).
256. First, subs 16(1)(c) and (h) contain no reference to reasonableness or any requirement that the publisher prove that his or her conduct was reasonable.
257. Secondly, as Windeyer J said in Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1968) 117 CLR 185 at 206, the section (in that case the then New South Wales equivalent to s 16) to "some extent reflected the privileged occasions of common law, but with some very considerable departures". Windeyer J, in speaking of the equivalent of s 16(1)(h) of the Queensland Act, said that it had "no direct common-law ancestor, although its several phrases recall various statements of common-law principles" (at 207).
258. Thirdly, the scope of s 377(3) of the Criminal Code (Q) (being the earlier equivalent of s 16(1)(c)) was considered by the High Court in Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632. Evatt J (with whom Rich and McTiernan JJ agreed) said of s 377(3) (at 657-658):
Whilst this refers to the common law position, it is reasonably plain that, by the insertion of the words `for the public good' in sec. 377(3) of the Criminal Code, the Legislature intended to make available, in circumstances for which no specific rule was laid down, the main considerations and the general principles by which Courts of common law had been guided in determining whether or not to accede to a new claim of privilege. (Cf. Dun v. Macintosh , per Griffith CJ)It also follows that, in considering whether the publication in Queensland of defamatory matter can be excused as a publication `for the public good' within the meaning of sec. 377(3), all the surrounding circumstances must be weighed and considered; that, as Queensland practice shows, such question should be determined by the Court, any relevant facts that are in dispute being found by the jury.
(Footnotes omitted.)
259. The claim under s 377(3) was rejected, with Evatt J saying (at 662):
The claim of the newspaper is that it became entitled to publish untrue and defamatory imputations against the plaintiff, merely because the company of which he was managing director had used this newspaper (and many others) as a means of circulating mining reports from time to time. Such a claim is not `in the interest of the community,' is not `for the welfare of society,' is not `for the good of society in general,' is not `for the common convenience and welfare of society.' I repeat the phrases used in the cases to which I have referred, and hold that the publication was not `for the public good' within the meaning of sec 377 (3) of the Criminal Code.
(Footnotes omitted.)
260. Fourthly, the scope of s 377(5) of the Criminal Code (Q) (being the earlier equivalent of s 16(1)(e)) was also considered by the High Court in Bedford [1934] HCA 15; 50 CLR 632. Evatt J said (at 662-663):
But I am quite clear that the newspaper readers neither had nor were believed, on reasonable grounds or at all, by the newspaper to have any real `interest in knowing the truth' within the meaning of sec. 377(5). The cases to which I have already referred show that the word `interest,' used in such a connection, means something much more than mere curiosity as to the private business or affairs of other persons. No doubt it was `interesting' to some readers of the newspaper to have it suggested that the plaintiff was guilty of very improper conduct as a director of the affairs of the Company. But the `interest' to which the sub-section refers is a real and direct personal, trade, business or social concern. Here there was a complete absence of any such concern on the part of the newspaper readers in the subject of the internal management of the Cracow Gold Mining Co. It follows that the defence based on sec. 377(5) also fails, so that it becomes unnecessary to consider the further condition of sec. 377 (3) - whether the `interest' of the readers was of such a character as to make the newspaper's conduct in making the publication reasonable under the circumstances.
261. Finally, the scope of s 377(8) of the Criminal Code (Q) (being the earlier equivalent of s 16(1)(h)) was the subject of close consideration by the High Court in Bellino v Australian Broadcasting Commission [1996] HCA 47; (1996) 185 CLR 183. A number of propositions emerge from that decision. First, a subject of public interest means that there must be some act or omission by some person or institution concerning a matter that invites public attention. Secondly, a subject matter described at a very high level of generality and bearing no relationship to the conduct of a person or institution is not a subject of public interest within s 16(1)(h). Thirdly, the subject of public interest need not be the acts or omissions of the plaintiff and it may be the acts or omissions of a third party. Fourthly, it is not necessary for the operation of the subsection that there be an existing discussion of a subject of public interest; the publication itself can constitute the discussion of a subject of public interest. Fifthly, to be "in the course of" the discussion within the subsection, it will ordinarily be sufficient if there is a temporal connection and it is not necessary that the defamatory matter contribute to the discussion or, independently of the good faith requirement, be relevant to the discussion. Finally, in the great majority of cases, public discussion of a subject of public interest will be for the public benefit.
262. With these general observations in mind, I turn to consider each of the defences of qualified protection.
1. Section 16(1)(c): Publication made in good faith for the protection of the interests ... of some other person, or for the public good
263. The defendant submitted that the first and second publications were made for the protection of the interests of "some other person" or "for the public good". In relation to the first limb, the defendant did not identify any particular person or class of persons. In those circumstances, it seems to me that the case, if it falls within s 16(1)(c) does so because the first and second publications were made "for the public good". Nevertheless, the defendant's submission was that the problems it exposed were so significant that it could be said that their exposure was for the protection of "some other person" because it was for the protection of the public. The defendant referred to remarks made by Wallace P in Clines v Australian Consolidated Press Ltd (No 3) [1966] 1 NSWR 481. In that case, the plaintiff demurred to a plea that the matter complained of, which had been published in a newspaper, was published "for the protection of the interests of persons seeking employment as models for commercial television announcements and other advertising purposes" and, therefore, it fell within the terms of the then New South Wales equivalent of s 16(1)(c) of the Defamation Act 1889 (Qld) (that is, s 17(c) of the Defamation Act 1958 (NSW)). Wallace P referred to the common law principles and said that the existence of a social or moral duty in the defendant was necessary even under s 17(c). His Honour gave two examples: in one, a newspaper would have a social or moral duty to make a disclosure and in the other, it would not. He said (at 490):
On the one hand a newspaper will obtain no lawful excuse if it publishes defamatory material for sensational or mercenary motives and where the subject-matter on analysis is of only spurious or bogus importance. On the other hand to expose a hidden and merciless evil or scandal affecting and causing harm and misery to innocent citizens and for the purpose of protecting the victims may well be, according to the circumstances, for the general welfare of society because the newspaper publication may be the best practical method of exposure and justify the trial judge in holding that the newspaper had a moral or social duty (having regard to its special facilities both for acquiring relevant knowledge and for circulating its knowledge) to make the exposure.
264. This case does not fall within the terms of the second example given by Wallace P. The "problems" exposed may be considered, on the face of it at least, both substantial and of public importance, but it cannot be said that they constitute "a hidden and merciless evil or scandal causing harm and misery to innocent citizens". In any event, as I have said, it seems to me to be quite unrealistic to characterise this case in which no person or class of persons has been identified, as one in which the question is whether the first and second publications have been made for the protection of the interests of "some other person".
265. In the alternative, the defendant submitted that the first and second publications had been made for the public good. The concept of the "public good" has been considered in a number of cases. In Bedford [1934] HCA 15; 50 CLR 632, a newspaper published in its "Letters to the Editor" section, a letter from a shareholder of a company engaged in gold-mining. The letter was defamatory of a director of the company. One of the issues before the High Court was whether the newspaper had a defence because it was "for the public good" that the letter be published to the readers of the newspaper. Evatt J answered that question in the negative. His Honour accepted that "disclosure within reasonable limits" of a shareholder's criticisms of the internal management of a company may create an occasion of privilege because there are advantages in free discussion of the company's affairs among its shareholders. However, the publication of those criticisms to all the readers of the newspaper could not be so characterised. In considering whether the publication was "for the public good" Evatt J took into account that the defamatory matter may cause irreparable injury to private reputation (at 658). He said (at 662):
On the contrary, if the claim of privilege were allowed to such an occasion, and protection given to communications of such a character, published under such circumstances, the result would be detrimental to the public welfare, and the reputation of individuals would often be injured or destroyed without any appreciable gain to the community. (Cf. Davis & Sons v. Shepstone [1886] 11 App. Cas. 187 at 190, 191].
In other words, in considering whether a publication is made for the public good, one consideration is the injury to, or destruction of, the reputation of the person defamed.
266. In Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514 a Sydney customs agent brought an action for libel against the Commonwealth based on a letter written by the Collector of Customs at Brisbane to the appellant's Brisbane agent. Evatt and McTiernan JJ considered whether the publication was made "for the public good". Their Honours distinguished the decision in Bedford and said (at 553-554):
In the present case, there is a definite gain to the community in permitting the claim of privilege. It allows the collector to select a milder alternative to prosecution or other legal investigation where he honestly believes that the offence of publishing untrue information has been committed, but there are circumstances justifying the adoption of a milder alternative. The occasion can be used to the public advantage because the licensed customs agent will be given the opportunity of considering his own position and of avoiding the peril of future disobedience of a necessary, if apparently harsh, penal provision. ... On the contrary, definite and public advantage must result from the limited freedom of action thus allowed to the collector, and the probabilities of serious defamation are extremely remote, though, in this particular case, defamation has occurred.
267. In Calwell v IPEC Australia Limited [1975] HCA 47; (1975) 135 CLR 321 the former leader of a political party in the Federal Parliament was defamed in an item published by a newspaper. The newspaper raised, inter alia, the defence in s 17(c) of the New South Wales Act. In separate reasons for judgment, Stephen and Jacobs JJ expressed the view that the defence was established. Jacobs J said at 335-336:
The only defamatory imputation was that which arose from the `innuendo', namely, that the plaintiff lacked loyalty. The loyalty was political loyalty in the Federal Parliamentary Labor Party. There was no imputation against the private character of the plaintiff. I find it hard to imagine a subject matter which should in our democracy more freely be able to be discussed, in writing or by word of mouth. It is for the greatest public good that views on the political attitudes, including party loyalty, of members of the Houses of Parliament should be able to be expressed without inhibition.
268. These three cases are quite different on the facts from the case before me, but they do make the important point that one relevant factor in determining whether a publication is for the public good is the fact that unwarranted injury or damage to the reputation of a private individual is not for the public good.
269. The words of s 16(1)(c) suggest that the publication must have been made for one of the reasons or purposes identified therein. The authorities are to the effect that this imports both an objective and a subjective element. In Bridges v Australian Consolidated Press [1967] 2 NSWR 511 Jacobs JA said at 520:
3. The defence `for the public good', although it must be very largely an objective test, nevertheless has in it some subjective element to the extent that the person publishing the defamatory matter must intend that the publication relate to the subject which it is for the public good to ventilate. Such an intention will usually appear from the circumstances of the case rather than from any direct evidence of such an intention.
(See to similar effect Walsh JA at 516.)
270. I do not think that in an objective sense, the first and second publications were made for the public good. The Toohey report resulted from an inquiry which by law was not to be held in public. As published in the defendant's magazine, the Toohey report was marked "Restricted" and the transcripts of the interviews conducted by Capt Toohey which were in the defendant's possession were marked "In Confidence". The Toohey report was published without the annexures and, in particular, the annexure which would have informed the reader of the fact of the Blick inquiry and of Mr Blick's conclusions. The Toohey report was published after an inquiry which, on one view, did not accord procedural fairness to the plaintiff. The Toohey report sets out a number of findings which are wrong. As I have said, the principal reason for the publications was the allegation of failures by Australia's military intelligence services and, in particular, the alleged distortion of intelligence assessments. That principal reason involved allegations which were false. There is not a piece of evidence before me which would support the conclusion that DIO issued distorted intelligence assessments. The defendant submitted that the first and second publications were for the public good because they led to further investigations into the reasons for the loss of access to the database and, ultimately, to the true position being established. Even if that link were established, I would not accept the submission. The fact is that Capt Toohey's finding about this particular issue is wrong and, in any event, as I have said, the principal reason for the publications was the allegation concerning distorted intelligence assessments.
271. I do not think that the first and second publications were made for the public good in a subjective sense. I recognise the distinction between purpose and motive discussed in cases such as Bridges v Australian Consolidated Press Ltd [1967] 2 NSWR 511 and Justin v Associated Newspapers [1967] 1 NSWR 61. Nevertheless, it seems to me that it is very difficult to conclude that a defendant, who was wilfully blind as to the truth or falsity of important imputations in the publications, namely, the distortion of intelligence assessments issued by DIO could, at the same time, be found to have made the publications for the public good.
272. For these reasons, the defence in s 16(1)(c) has not been made out. In addition, for reasons I will give in the context of my consideration of s 16(1)(h), I find that the first and second publications were not made in good faith and that the plaintiff has established an absence of good faith.
(2) Section 16(1)(e): the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances.
273. This defence has some similarities to the defence in s 22 of the Defamation Act 1974 (NSW). It also imports both an objective element and a subjective element. This defence also fails because the defendant is unable to make out the subjective element. A key allegation in the first and second publications is the distortion of intelligence assessments and the defendant was wilfully blind as to the truth or falsity of that allegation. In those circumstances, it cannot be said that the first and second publications were made for the purpose of giving "information". Nor can it be said that the defendant believed on reasonable grounds that its readers had such an interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances. In view of what the defendant knew, it cannot be said that its conduct in making the publication was reasonable under the circumstances.
274. For these reasons, the defence in s 16(1)(e) has not been made out. In addition, I am satisfied that the first and second publications were not made in good faith and the defence fails on that ground as well. Again, I refer to my discussion of this topic in the context of s 16(1)(h).
3. Section 16(1)(h): publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit.
275. I think the first and second publications involve a discussion of a subject of public interest. The discussion concerns public institutions, namely, Australia's military intelligence services, including DIO, and officials performing public duties, including the plaintiff. On the authorities that is sufficient for the publications to be characterised as discussions of a subject of public interest. I think the publications were made "in the course of" such a discussion. As I have said, there is no need for a public discussion of the particular topics to be on foot, nor is it necessary to show that the particular matters discussed were relevant to the discussion. The discussion in the first and second publications is a public discussion for the public benefit because it is a discussion of subjects of public interest. The defamatory imputations do not relate to matter that is comment and it is not necessary to address that element in s 16(1)(h).
276. The defence in s 16(1)(h) would be made out unless the plaintiff proves an absence of good faith. In this case, the plaintiff has proved an absence of good faith. There are three reasons why I have reached that conclusion. Any one of them is sufficient to establish an absence of good faith: Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309; Queensland Newspaper Pty Ltd v Baker [1937] St.R.Qd. 153.
277. First, in my opinion, the manner of the first and second publications did exceed what was reasonably sufficient for the occasion. I think the manner of the publication invites attention to the way in which the material was presented to the readers of the publication. In that context, the matters I have identified in [65]-[74] and [85]-[88] above lead me to conclude that the first and second publications exceeded what was reasonably sufficient for the occasion. Secondly, I have found that the defendant was actuated by an improper motive in making the publications. I refer to the finding I have made as to motive (see [249]-[252] above). Thirdly, I think that for the purposes of s 16(2), it is appropriate to find that the defendant knew the defamatory matter to be untrue in that Mr Lyons was, at least, wilfully blind as to the truth or falsity of important imputations in the publications, namely, that the DIO issued distorted intelligence assessments and it was those imputations which led to the first and second publications.
278. In my opinion, the defendant has failed to make out the defences in s 16(1)(c), (e) and (h) of the Defamation Act 1889 (Qld) and the equivalent paragraphs in the Defamation Act 1957 (Tas).
D. The Defence of Fair Comment
279. The common law defence of fair comment on a matter of public interest is relevant to the publications in Victoria, South Australia, Western Australia and the Australian Capital Territory. Statutory defences are relevant in relation to the publications in New South Wales, Queensland, Tasmania and the Northern Territory.
1. The Common Law Defence of Fair Comment on a Subject of Public Interest
280. The relevant legal principles are not in dispute. They may be summarised as follows:
1. The defamatory matter must be comment, not a statement of fact. In Salmond & Heuston on the Law of Torts (20th ed, RFV Heuston and RA Buckley, 1992) at 183-184 the following statement is made (at 473-474):
Comment or criticism is essentially a statement of opinion as to the estimate to be formed of a man's writings or actions. Being therefore a mere matter of opinion, and so incapable of definite proof, he who expresses it is not called upon by the law to justify it as being true, but is allowed to express it, even though others disagree with it, provided that it is honest.
In Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 82 ALJR 303 at 314 [35], Gummow, Hayne and Heydon JJ made the following observations as to the difference between comment and fact (footnotes omitted):
A "discussion or comment" is to be distinguished from `the statement of a fact'. `It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated'. ... the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of "comment" as "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, Judgment, remark, observation, etc". It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts.
The Court is required to put itself into the position of the ordinary reasonable recipient of a communication. In Manock 82 ALJR at 314 [36], Gummow, Hayne and Heydon JJ said (footnotes omitted):
The question of construction or characterisation turns on whether the ordinary, reasonable "recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered" - not "an exceptionally subtle" recipient, or one bringing to the task of "interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at".
2. The comment must be on, or with respect to, a matter of public interest.
3. The comment must be fair and that in turn involves the following:
(a) The comment must be one which might have been made by an honest man.
(b) The comment must be based on facts truly stated. In Manock 82 ALJR at 319 [49], Gummow, Hayne and Heydon JJ said (footnotes omitted):
According to the propositions which are stated in the first passage by the six majority justices in Pervan's case, and which are supported by their reference to Odgers, a sufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (that is, by `setting it out'); the factual material commented on, while not set out in the material, can be referred to (that is, by being identified `by a clear reference'); and the factual material can be `notorious'. Those propositions are supported by other authority in Australia, England, South Africa, Hong Kong and the United States.
The facts upon which the comment is based must be justified, and to the extent that the defendant submitted otherwise, its submission must be rejected.
(c) In order to be fair, the defendant must honestly believe the comment to be true and must not be inspired by a malicious motive. The onus is on the plaintiff to establish that the defendant was actuated by malice.
281. The defendant submitted that the imputations which the plaintiff particularised were matters of comment not statements of fact. The imputations which I have found to be conveyed by the words used do not accord precisely with the imputations which the plaintiff particularised. Nevertheless, the defendant's submissions apply with equal force and must be considered in relation to the imputations which I have found.
282. As far as the first publication is concerned, the words which convey the imputations, which I have found, are contained in both the Toohey report and the articles written by Mr Lyons and the accompanying material. By accompanying material I mean the headings or headlines and the note by Mr Linnell. Having regard to those circumstances, the defendant made two submissions. First, it submitted that insofar as the imputations arose from the words used in the Toohey report, those words were expressions of opinion, and therefore comment by Capt Toohey. Secondly, it submitted that insofar as the imputations arose from the words used in Mr Lyons' articles and the accompanying material, those words were opinions and, therefore, comment, by Mr Lyons and, in one case, Mr Linnell.
283. In my opinion, both these submissions must be rejected, and it follows that the defendant has failed to establish the first element of the common law defence of fair comment on a matter of public interest.
284. As far as the Toohey report is concerned, and adapting the defendant's submissions to the imputations as I have found them to be, the defendant submitted that the first two imputations arose from finding 135, the third and fourth imputations each arose from finding 132, and the fifth imputation arose from finding 131. The defendant submitted that findings 135, 131 and 132 were, in fact, opinions expressed by Capt Toohey and, therefore, comment. It submitted that the "opinions" were opinions expressed on the basis of the material Capt Toohey had set out earlier in his report. I note that the defendant did not submit that there was material upon which the "opinions" were based which was not set out in Capt Toohey's report and therefore it is not necessary to consider whether it is permissible to go outside the Toohey report. The defendant submitted that it did not have to establish the correctness of the material upon which the "opinions" were based.
285. The defendant's submissions encounter a number of difficulties. First, it cannot be said that the material upon which the "opinions" were based was set out in the earlier parts of Capt Toohey's report, at least not as to all of the imputations. For example, I reject the defendant's submission that the material upon which the third imputation was based was set out in the earlier parts of Capt Toohey's report. It is unnecessary for me to pursue this aspect of the defendant's submission any further because of the conclusion that I have reached that the words which conveyed the imputations in Capt Toohey's report were statements of fact and not comment. Secondly, it is not correct to say that the defendant is not required to establish the correctness of the material upon which the "opinions" were based. Again, it is not necessary for me to pursue this submission of the defendant any further. Thirdly, I do not accept that the words which conveyed the imputations were opinions rather than statements of fact. In my opinion, they were clearly statements of fact.
286. The words which convey the imputations I have found are not simply the words in the three findings of Capt Toohey which the defendant identified. I refer to Annexure 1 to these reasons and the other passages in the Toohey report which the plaintiff relies upon as conveying the imputations.
287. In my opinion, the ordinary, reasonable reader of the Toohey report, which was included in the first publication, would not consider the words complained of as conveying expressions of opinion as distinct from statements of fact. The ordinary reasonable reader would conclude that Capt Toohey was conducting an inquiry pursuant to regulations. He or she would conclude from Capt Toohey's executive summary that Capt Toohey was making statements of fact including a statement that product of Australia's intelligence system was "driven by the policy of the government of the day". He or she would note that in conducting the inquiry, Capt Toohey had applied a methodology set out in an administrative inquiries manual and that he had conducted a number of interviews and considered a number of documents. He or she would note that those interviewed included persons occupying senior positions. He or she would note Capt Toohey's lengthy description of the issues before him and the evidence he heard or obtained in relation to those issues. He or she would view the matters in 130-147 as findings of fact, as indeed they were so described by Capt Toohey. He or she would note the detailed and lengthy recommendations made by Capt Toohey, and he or she would assume, correctly in my view, that those recommendations were not made on the basis of mere opinions. The submission that the defamatory material in Capt Toohey's report amounted to no more than expressions of opinion must fail.
288. This conclusion is sufficient to dispose of the common law defence of fair comment on a matter of public interest. That follows because even if the articles written by Mr Lyons and the accompanying material contained no more than comment (and for reasons I will give, I find the contrary to be the case) the defendant has not established that the facts in Capt Toohey's report, upon which the alleged comment, is based are true.
289. As far as the articles written by Mr Lyons and the associated material are concerned, I am of the opinion that the defamatory words are statements of fact rather than comments. That is certainly the case insofar as Captain Toohey's findings and recommendations were quoted. The other material would be understood by an ordinary, reasonable reader as conveying statements of fact. The front cover of the first publication referred to a "Defence Scandal" and to matters being "Revealed" including "Our intelligence failures". The reference to a "Defence Scandal" was repeated on page 4, and it was said that a leaked copy of the inquiry's "explosive" report has "damned" Australia's intelligence services. That reference was repeated on the second page of Mr Lyons' article at page 31. As I have previously said, it was conveyed to the ordinary reasonable reader that Lt-Col Collins' statements and opinions were correct and he was "lionised" in the articles. The complaints of Lt-Col Collins and Capt Toohey's findings were adopted by Mr Lyons. For example, the following appeared in the article at page 32:
With Australia's intelligence services under increasing attack for appearing to tailor their reports to suit government policy, Collins' uncompromising appraisal of our intelligence shortcomings both before and during the Iraq conflict is certain to shake the foundations of the defence establishment. (My emphasis)
290. Lt-Col Collins' letter to the Prime Minister was quoted including his statement that without a Royal Commission there would be a cultivation of "an artificial scab over the putrefaction beneath". It was said that Capt Toohey's report supported Lt-Col Collins' claims that "there is a cancer in the heart of our intelligence system". Capt Toohey's conclusions were referred to as findings and he was said to have found certain matters "as fact". Lt-Col Collins was said to have engaged in a "determined pursuit for justice" and that what followed was a "damning indictment of Australia's security and defence organisations". Mr Lyons drew the following conclusion:
What it reveals is an atmosphere of political intrigue, personal character assassination and growing evidence of an intelligence bureaucracy more intent on serving its political masters than fulfilling its duty to protect the Australian national interest.
291. I accept that some aspects of Mr Linnell's note might be characterised as comment.
292. Capt Toohey's report was described as "one of the most comprehensive inquiries into how Australia's military intelligence operates". It was said that many of the claims made by Collins over the past five years have been borne out in the Iraq conflict, and by findings of the Toohey report. It was said that Lt-Col Collins' refusal to provide information tailored to suit the political doctrine of the day appeared to have cost him his career. It was said that what "sank" Lt-Col Collins's career was "that he warned that `a pro-Jakarta lobby' in the Australian bureaucracy had a strangle-hold on policy".
293. The same conclusions should be reached in relation to the second publication. Again, there was a reference to a finding made by Capt Toohey about the suspension to the flow of intelligence. The following statement appeared:
Until Howard reveals why Australian soldiers were endangered in this way, the issue will not go away.
294. It was submitted by the defendant that this statement was a comment. It was partly an assertion of fact and partly a comment. The assertion of fact was that Australian soldiers were endangered by the suspension to the flow of intelligence. The comment or opinion was that until the Prime Minister revealed why this had happened, the issue would not go away.
295. In my opinion, none of the words in the articles or the associated material which conveyed the imputations were comment, and the common law defence of fair comment on a matter of public interest must fail. In the circumstances, it is not necessary for me to consider the other elements of the defence. I would simply note that the plaintiff appears to have accepted that the statements were statements on matters of public interest.
2. The Statutory Defence of Fair Comment in New South Wales
296. The relevant legislative provisions in the Defamation Act 1974 (NSW) are as follows:
30. Proper material(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.
(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.
(3) The defences under this Division are available as to any comment if, but only if:
(a) the comment is based on proper material for comment, or
(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.
(4) ...
31 Public interest
The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.
...
33 Comment of servant or agent of defendant
(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.
(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment.
34 Comment of stranger
(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.
(2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education.
35 Effect of defence
Where the matter complained of includes comment and includes material upon which the comment is based, a defence under this Division as to the comment is not a defence as to the material upon which the comment is based.
297. These statutory provisions apply to the exclusion of the common law defence of fair comment on a matter of public interest: s 29.
298. The defendant relied on both ss 33 and 34: s 33 in relation to what were alleged to be comments by Mr Lyons and Mr Linnell, and s 34 in relation to what were alleged to be comments by Capt Toohey.
299. Although there are some differences between the statutory provisions and the common law defence of fair comment on a matter of public interest, they are not material for present purposes. The statutory defence fails for the same reasons as the common law defence fails, namely, the words which conveyed the imputations, as I have found them to be, were statements of fact and not comment.
3. The Statutory Defences of Fair Comment in Queensland, Tasmania and the Northern Territory
300. For present purposes, the statutory provisions in Queensland, Tasmania and the Northern Territory are the same (save that there is no equivalent of paragraph (h) in the Northern Territory) and I refer only to the Queensland provisions. Section 14 of the Defamation Act 1889 (Qld) provided, relevantly:
14. Protection - fair comment(1) It is lawful -
...
(b) to publish a fair comment respecting the public conduct of any person who takes part in public affairs, or respecting the character of any such person, so far as the person's character appears in that conduct;
(c) to publish a fair comment respecting the conduct of any public officer or any public servant in the discharge of his or her public functions, or respecting the character of any such person, so far as his or her character appears in that conduct;
...
(h) to publish a fair comment respecting any communication made to the public on any subject;
(2) Whether a comment is or is not fair is a question of fact.
(3) If it is not fair, and is defamatory, the publication of it is unlawful.
301. The statutory defences fail for the same reasons as the common law defence fails. The words conveying the imputations as I have found them to be are statements of fact and not comment.
4. Statutory Defences Relating to Reports of Matters of Public Interest and Fair Comment in Queensland and Tasmania
302. Again, it is sufficient to refer only to the Queensland provisions. The Tasmanian provisions are not materially different. The relevant provisions of the Defamation Act 1889 (Qld) were as follows:
13. Protection - reports of matters of public interest(1) It is lawful -
...
(d) to publish in good faith for the information of the public a fair report of the proceedings of any inquiry held under the authority of a statute, or by or under the authority of the Government, or of the Governor in Council, or an extract from or abstract of any such proceedings, or a copy of, or an extract from or abstract of, an official report made by the person by whom the inquiry was held;
(2) A publication is said to be made in good faith for the information of the public if the person by whom it is made is not actuated in making it by ill will to the person defamed, or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used in the case of the publication of news.
14 Protection - fair comment
(1) It is lawful -
(a) to publish a fair comment respecting any of the matters with respect to which the publication of a fair report in good faith for the information of the public is by section 13 declared to be lawful.
303. The defendant submitted that the Toohey report fell within the terms of s 13(1)(d), and the articles by Mr Lyons and the accompanying material fell within the terms of s 14(1)(a). I reject that submission. As far as the Toohey report is concerned, I do not accept that it was published in good faith for the information of the public. For reasons I have given previously, I think that the Toohey report was published for an improper motive. Furthermore, I do not accept that Mr Lyons' articles and the accompanying material constitute fair comment within the provisions of s 14(1)(a) for reasons I have previously given.
304. The plaintiff submitted that the Toohey report did not fall within the terms of s 13(1)(d) for another reason. He submitted that only inquiries which were held in public fell within the terms of the paragraph. The inquiry conducted by Capt Toohey was not held in public; in fact, by law it was not to be held in public. It is true that a number of the paragraphs in s 13(1) refer to proceedings which, ordinarily at least, will be held in public, but I do not think that that is sufficient reason to read such a requirement into the words of s 13(1)(d). The other submission made by the plaintiff was that the Toohey report was not an official report within s 13(1)(d) because it was a nullity. It was a nullity, so it was submitted, for the reasons set out in Col Tracey's report. I reject this submission. I do not think that a "valid report" (whatever that might mean) is a pre-condition to the operation of s 13(1)(d).
E. The Statutory No Negligence defence in the Australian Capital Territory
305. The relevant legislative provision is s 134 of the Civil Law (Wrongs) Act 2002 (ACT) which provides as follows:
134 (1) It is a defence if the defendant establishes that the published matter (other than any published matter imputing criminal behaviour) was not published negligently.(2) For subsection (1), it is sufficient if -
(a) the defendant establishes that the defendant took reasonable steps to ensure the accuracy of the published matter; and
(b) the defendant gave the plaintiff a reasonable opportunity to comment on the published matter before it was published.
306. For reasons I have given previously in connection with the extended category of the defence of qualified privilege the defendant cannot bring the case within s 134(2), and it cannot otherwise establish that the first and second publications were not published negligently within s 134(1).
307. All of the defences raised by the defendant fail.
308. It is now necessary to consider the relief to which the plaintiff is entitled. He claims damages, including aggravated and exemplary damages, costs, interest and an order pursuant to s 122 of the Civil Law (Wrongs) Act 2002 (ACT) vindicating his reputation.
VI DAMAGES
309. The plaintiff claims an award of compensatory damages, including aggravated damages, and an award of exemplary or punitive damages.
310. I begin with the award of compensatory damages. At common law three purposes are served by an award of compensatory damages. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, Mason CJ, Deane, Dawson and Gaudron JJ said (at 60-61) (footnotes omitted):
The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. `The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant.
311. In considering the harm done to the plaintiff's reputation by the publications, it is necessary to identify his reputation before the publications, and then consider the effect of the publications on that reputation. The defendant submitted that there was an incident prior to the publications which had an adverse effect on the plaintiff's reputation and submitted that it must be taken into account in determining the plaintiff's reputation before the publications. The defendant also submitted that there were incidents after the publications which had adverse effects on his reputation and for which the defendant was not responsible, and submitted that these must be taken into account in determining the effects of the publications on the plaintiff's reputation.
312. The plaintiff was held in high regard before the first and second publications. He held a very responsible position. General Cosgrove described the plaintiff's reputation as "strong". He was intelligent and determined, and he was not a man to tailor his views to suit others. The plaintiff's wife described him in a similar way. Mr Smith said that he had been told the plaintiff was very bright and had very strong analytical capabilities. He said that the plaintiff was highly regarded and had a reputation for being his own man. Mr White gave evidence of the plaintiff's reputation which was in similar terms. The same may be said of the evidence of Dr Brabin-Smith, Mr Orr, Dr Hawke and Air Chief Marshal Houston. All these witnesses spoke of the plaintiff's intelligence, independence and integrity.
313. The defendant submitted that the plaintiff's reputation was adversely affected by the publicity which followed his comments at a seminar at the Australian National University in August or September 2003. I refer to my description of the incident in [123] above. I have considered the evidence carefully. On one view, and leaving aside his reputation in the eyes of the Australian Government, the incident may not have adversely affected the plaintiff's reputation and, indeed, it may have enhanced his reputation. On one view, it showed him as being courageous and independent. That was a possibility to which Mr Smith adverted. I do not need to pause on this point because I accept the evidence of Mr Smith who said that the incident including the publicity did not affect the plaintiff's reputation in any significant way. Mr Smith said:
It was a flash in the pan in the sense that it began on the Saturday and by the Wednesday it was disposed of. It was limited, of course, to the Sydney Morning Herald and, I think, well The Age and the Sydney Morning Herald and I think in the absence of wider dissemination and so on I don't think it had a great impact, if any, on his reputation. Indeed, there were, you know, some people who said he's out there doing the right thing talking to groups. That wasn't my view, but there were people who thought so.
314. Mr White also said that he did not think the incident affected the plaintiff's reputation.
315. The effect on the plaintiff's reputation of the first and second publications was significant. Gen Cosgrove said that the plaintiff immediately became "damaged goods" in the eyes of anybody who had read the first publication. Mr Smith also described the adverse effects of the first publication (see [145] above), as did Mr White (see [158] above). Dr Brabin-Smith gave evidence of a recent incident when, in the course of a conversation, the plaintiff's name was mentioned and one of those present referred to the plaintiff as the person who had turned off the source of intelligence to the Defence Force in East Timor. Mr Orr, Dr Hawke and Air Chief Marshal Houston also described the effect of the first and second publications on the plaintiff's reputation (see [166] [169] and [173] above). The defendant referred to evidence of witnesses who said that they knew the plaintiff and did not believe the imputations to be true. That must often be the case and it is those outside the plaintiff's immediate circle of friends and close associates who must be considered. Furthermore, at common law the Court is entitled to take into account the fact that the effect of the publications on the plaintiff's reputation within certain circles, in this case, senior Defence officers and officials, senior public servants and Ministerial advisers and staff, would have been particularly adverse: Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 507 per Brennan J. Having regard to the serious nature of the imputations, I have no difficulty in concluding that the first and second publications had a significant effect on the plaintiff's reputation.
316. The defendant submitted that there were incidents subsequent to the first and second publications and for which it was not responsible which had an adverse effect on the plaintiff's reputation.
317. The first incident came about when the plaintiff's solicitors wrote to Capt Toohey and as a result of that letter the plaintiff was cautioned by a Chair of one of the Senate Committees in June 2004. I refer to my description of the incident in [123] above. I do not think that this incident or the publicity which followed had a significant effect on the plaintiff's reputation. In my opinion, at most, it was probably viewed by a reader as the plaintiff through his solicitors being somewhat over-zealous in asserting his rights and the correctness of his position.
318. The second incident was the publication of the respective findings of Mr Carnell, Mr McLeod and Mr Henderson. I have set out the substance of those findings in [101]-[104] above. There was considerable cross-examination of Mr Smith on this topic and a lengthy minute which Mr Smith had prepared on 7 December 2004 was the subject of a number of questions. It seems that Mr Carnell's abridged report was released by the Minister for Defence on 25 August 2005, together with a press release by the Minister. The press release included the following:
As I previously stated on 9 December 2004, Mr Carnell found that the removal of access to the relevant Dili based users was deliberate. This is contrary to the finding of Mr Blick, Mr Carnell's predecessor, in an earlier investigation. ...To Mr Carnell his key concerns were establishing the means by which the cut to access occurred and what was said about it afterwards.
In relation to how the cut occurred, as I have said, Mr Carnell found it was the result of a deliberate decision within DIO.
On the issue of what was said about it afterwards, Mr Carnell found that the officer who ordered the cut in access may have made statements in 2001 that potentially raised issues of a legal or administrative nature. He recommended that his report be referred to the Secretary of the Department of Defence for him to consider whether an investigation should be conducted into these issues. ...
Mr McLeod concluded that three public servants then working in DIO may have infringed the APS Code of Conduct as a result of actions each had taken or had not taken in relation to this matter.
The Secretary appointed two delegates to examine whether misconduct had occurred under the Public Service Act. The delegates proceeded in accordance with that Act and have now concluded their investigation, made findings and where appropriate applied sanctions. ...
There are certain conclusions I have drawn from this matter and administrative actions that have been taken to ensure such a scenario is not repeated:
1. If it was decided to remove access to a database from those in the field, even if the consequences were not significant and the action was justified, the users should have been told and given reasons for the decision;
2. Furthermore, the fact that Mr Blick in his investigation was left to reach conclusions, which at least one officer knew to be incorrect, was highly unsatisfactory;
3. The events called for disciplinary action under the Public Service Act which has now occurred;
4. In relation to attitudinal differences between the strategic intelligence and tactical intelligence communities, significant reform has since occurred in accordance with the recommendation of the Flood Report. This process of reform is ongoing.
319. Mr Smith said that Mr Carnell's findings were widely known by those working with Defence and in the public service, but that the matters raised in the Minister's press release received only that publicity and that:
... the issue was being handled within Defence. It wasn't such a matter of public notoriety.
320. I have already referred to the conversation between Mr Smith and the plaintiff in November and December 2004. Mr Smith was pressed in cross-examination to agree that the findings of Mr Carnell had also harmed the plaintiff's reputation in government. He gave the following evidence:
But I am not asking you to allocate proportions, but you'll come so far with me as to agree that one of the things you had in mind in what you said to him in December 2004, was what the effect, in the government's mind, of the Carnell Report? --- Well, look, I don't think I can say I definitely didn't, but I was overwhelmingly preoccupied with this matter. The whole consequence of Toohey.I see? --- That was the issue that was before us at that time. Lewincamp had, in public service terms, well and truly survived the February 04 issue. Between then and the publication of The Bulletin article, there wasn't an issue.
321. Mr Smith said that there was very limited circulation of the respective reports of Mr McLeod and Mr Henderson. Gen Cosgrove also gave evidence of the limited publicity given to Mr McLeod's findings.
322. The findings of Mr Carnell would have had an adverse effect on the plaintiff's reputation. He was the Director of DIO and, according to the findings made by Mr Carnell, that organisation had been responsible for a deliberate decision to cut access to the database and one of its members may have provided a false statutory declaration knowing that it was false. Furthermore, the conduct of one or more members of DIO had led to Mr Blick being misled and to certain public statements not being accurate. The findings of Mr McLeod and Mr Henderson respectively which were adverse to the plaintiff would also have had an effect on the plaintiff's reputation, although that effect would have been somewhat less because of the more limited publication of those findings. These matters must be taken into account in assessing damages. However, having regard to the whole of the evidence, I think they are relatively minor when compared with the devastating effects on the plaintiff's reputation of the first and second publications.
323. One other matter, which the defendant submitted should be taken into account, is the evidence of Mr Smith in cross-examination to the effect that because of the work he had previously done, the plaintiff was not particularly popular with Army personnel. He was regarded as the "hard man". This fact does not seem to me to be particularly significant.
324. In considering the personal distress and hurt to the plaintiff resulting from the publications, I refer to, but do not repeat, the evidence set out in [115], [116], [120], [140], [143], [147], [160], and [166]. I have no doubt that the first and second publications caused significant personal distress and hurt to the plaintiff. The plaintiff is a proud man who, among other things, valued and values his reputation for being fearless and independent. It was those characteristics which were attacked in the first publication and that must have been particularly galling for the plaintiff. In addition, I have not overlooked the fact that the plaintiff's family life was affected by the first and second publications and he became concerned and worried about the effects on his family.
325. The defendant submitted that although it had abandoned its defence of justification, it had in fact established that some of the imputations or parts of those imputations were true and that this was relevant to the assessment of damages. It referred to the imputation concerning the loss of access to the database and the imputation based on Capt Toohey's finding of attempts to muzzle Lt-Col Collins. In relation to the first matter, it submitted that it had established that the plaintiff had directed that access to the database be cut or, at least, had known on 21 December 1999 that the loss of access had resulted from a deliberate decision by someone within DIO. Furthermore, it submitted that the plaintiff had knowingly submitted a false statutory declaration to the Blick inquiry. For reasons I have already given (at [124]) I reject these contentions. In the circumstances it is not necessary for me to consider the plaintiff's submission that it is not open to the defendant to rely on these matters in circumstances where the plea of justification has been abandoned and there is no plea of partial justification of a severable libel: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [48]- [52] per Handley JA (with whom Spigelman CJ and McColl JA agreed).
326. As far as the vindication of the plaintiff's reputation is concerned, I note that the imputations were very serious, that they were untrue, and that the defendant has made no attempt to correct the imputations. The defamatory imputations were published in a well-known magazine, which had a long history of dealing with the public and current affairs in a serious and considered way.
327. The figures for the distribution and sale of the first publication ([79]) and of the second publication ([89]) are set out above. As I have said, it is appropriate that I proceed on the basis that the number of people who read the relevant editions is likely to have been a number of times greater than the number who purchased them.
328. The plaintiff asked me to take into account in assessing damages the fact that the defendant's conduct and the first and second publications resulted in the publication of a number of other articles or programmes repeating the defamatory imputations, or some of them, by other media outlets. He did not advance a case of liability for re-publication (Speight v Gosnay (1891) 60 LJQB 231), but, rather, submitted that I could take the other articles and programmes into account on damages (Sims v Wran [1984] 1 NSWLR 317).
329. The articles and programmes which were published and which are the subject of other actions by the plaintiff (see [331] below) must be put to one side; the plaintiff has recovered or is claiming damages with respect to them.
330. I have no doubt, having regard to the evidence, particularly that of the plaintiff, that the first publication led to the publication of a number of other articles and programmes which repeated the defamatory imputations (or imputations to similar effect), or some of them, by other media outlets. The other articles and programmes, although particularised by the plaintiff, were not put in evidence. The plaintiff submitted that the numerous publications following the first publication were made as "a natural and probable consequence of the publication of the matters complained of". He pointed to the media release despatched by the defendant shortly prior to the first publication and set out above (see [83] above). In my opinion, while the nature of the first publication and the media release are sufficient to establish causation and foreseeability, there is a difficulty for the plaintiff in that absent those other articles and programmes I am unable to assess what further damage they caused. I take the fact of them into account but only in a very general way.
331. For its part, the defendant asked me to take into account five other actions the plaintiff has commenced in this Court against other media outlets and Capt Toohey. The details of those actions are as follows:
1. Action commenced in the Supreme Court of the Australian Capital Territory by the plaintiff against John Fairfax Publications Pty Ltd on 13 April 2005.
2. Action commenced in the Supreme Court of the Australian Capital Territory by the plaintiff against Martin John Toohey on 27 April 2005.
3. Action commenced in the Supreme Court of the Australian Capital Territory by the plaintiff against The Age Company Ltd on 13 April 2005.
4. Action commenced in the Supreme Court of the Australian Capital Territory by the plaintiff against Nine Network Australia Pty Ltd on 12 April 2005.
5. Action commenced in the Supreme Court of the Australian Capital Territory by the plaintiff against the Australian Broadcasting Corporation on 12 April 2005.
332. The defendant tendered a folder which contained the statements of claim in each of these actions and each statement of claim had annexed to it the publications in written form which was alleged to be defamatory of the plaintiff. The folder also contained correspondence from the plaintiff's solicitors setting out the imputations said to arise from the publications in the case of three of the five actions. The defendant also provided a schedule setting the date of the publication, a description of the publication and a summary of the alleged imputations. In the case of two of the actions the imputations were imputations the defendant said arose from the publications in issue in the action.
333. A summary of each of the publications, the mode of publication and the date upon which it was made is as follows:
DATE |
THE PUBLICATION AND MODE OF PUBLICATION |
John Fairfax Publications Pty Ltd | |
14 April 2004 |
The Sydney Morning Herald newspaper and internet website - 2 stories |
15 April 2004 |
The Sydney Morning Herald newspaper and internet website - 3 stories |
17 April 2004 |
The Sydney Morning Herald newspaper and internet website - 2 stories |
23 April 2004 |
The Sydney Morning Herald newspaper and internet website - 1 story |
29 April 2004 |
Internet website - 1 story |
1 May 2004 |
The Sydney Morning Herald newspaper and internet website - 1 story |
29 April 2004 |
Internet website - 1 story |
Martin John Toohey | |
29 April 2004 |
Radio broadcast AM programme |
29 April 2004 |
The Bulletin magazine dated 1 May 2004 |
Age Company Limited | |
15 April 2004 |
The Age newspaper - 5 stories |
29 April 2004 |
Internet website - 1 story |
30 April 2004 |
The Age newspaper and internet website - 1 story |
Nine Network Australia Pty Ltd | |
13 April 2004 |
Television programme Nine National News |
18 April 2004 |
Television programme Sunday and ninemsn website |
Australian Broadcasting Corporation | |
13 April 2004 |
Television programme Lateline and internet website |
14 April 2004 |
Television programme Lateline and internet website |
14 April 2004 |
Radio broadcast World Today radio programme and internet website |
14 April 2004 |
Radio broadcast PM radio programme and internet website |
16 April 2004 |
Radio broadcast PM radio programme and internet website |
20 April 2004 |
Radio broadcast AM radio programme |
29 April 2004 |
Radio broadcast AM radio programme |
10 December 2004 |
Radio broadcast AM radio programme |
334. It is not necessary for me to set out the imputations said to arise from each of these publications. It is sufficient to say that a number of the publications are alleged to contain one or more imputations to the same purport or effect as the imputations I have found were conveyed by the first and second publications.
335. In the case of each publication, whether by newspaper, internet, radio or television, the plaintiff alleged that the defamatory matter was published in each State and Territory of the Commonwealth. Nothing was put before me to indicate the total publications made or the number of publications made in each State or Territory.
336. None of the five actions, other than the action against Capt Toohey, has come on for trial or been resolved. The action by the plaintiff against Capt Toohey was resolved after the trial of this action. The defendant applied to put before me the consent judgment in the action by the plaintiff against Capt Toohey. The plaintiff applied to put before me a series of letters which preceded the consent judgment. I will receive that material: the consent judgment will be marked "D14" and the correspondence will be marked "P29".
337. The consent judgment is in the following terms:
The Court orders by consent that:1. Judgment be entered for the plaintiff against the defendant for the sum of $35,000.
2. Any existing orders as to costs be vacated.
3. There be no order as to costs.
and the Court notes by consent the following agreements between the parties:
4. The defendant apologises to the plaintiff in the terms annexed hereto.
5. The plaintiff and the defendant agree that neither will disclose to any person save as required by law the amount of this judgment, save that a party may disclose that the judgment was substantial.
338. An apology to the plaintiff signed by Capt Toohey on 16 June 2008 forms part of the consent judgment.
339. It seems to me that the only significance of the correspondence preceding the consent judgment is the assertion by the plaintiff that its costs and disbursements were at least $20,000.
340. Each party made written submissions as to the significance to be accorded to the settlement of the plaintiff's proceedings against Capt Toohey.
341. In the Australian Capital Territory, the relevant section dealing with other recoveries and actions at the relevant time was s 135 of the Civil Law (Wrongs) Act 2002 (ACT) which provided as follows:
135. At the trial, the defendant may give evidence, in mitigation of damages, that the plaintiff has already recovered, or has brought an action for damages, or has received or agreed to receive compensation in relation to the published matter.
342. Section 124 of the Act provided as follows:
In this part:Published matter, in relation to an action against a defendant for the publication of matter that is or may be defamatory, means the matter so published.
343. In New South Wales, the relevant section at the relevant time was s 48 of the Defamation Act 1974 (NSW) which provided as follows:
48. In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant in mitigation of damages, that the plaintiff:(a) has already recovered damages,
(b) has brought proceedings for damages, or
(c) has received or agreed to receive compensation,
for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings.
344. It is common ground between the parties that at the relevant time, the other jurisdictions had provisions similar in effect to the New South Wales provision (see, for example, s 12 Wrongs Act 1958 (Vic); s 24 Defamation Act 1889 (Qld); s 11 Civil Liability Act 1936 (SA) s 11; s 25 Defamation Act 1957 (Tas); s 10 Defamation Act 1938 (NT)). It is sufficient for me to refer to the New South Wales provision as representative of the provisions in the other jurisdictions, other than the Australian Capital Territory.
345. As I have already said, the place of the tort of defamation is the place of publication, and it is the substantive law of the place of publication which is to be applied. For publications in the Australian Capital Territory, the substantive and procedural law of the Australian Capital Territory is to be applied. For publications in New South Wales, the substantive law of New South Wales is to be applied. The distinction between substantive law and procedural law for the purposes of these choice of law rules was considered by the High Court in John Pfeiffer Pty Ltd v Rogerson (supra). Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at 544 [100]:
These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.
346. All of the other recoveries and actions sections, including the relevant section in the Australian Capital Territory, refer to matters which may be given in evidence in mitigation of damages. I do not think that this means the sections provide only for a rule of evidence. The substance of the sections in this respect is to provide that certain matters mitigate or reduce the damages that may be recovered. In my opinion, the sections relate to the amount of damages that may be recovered and that is a substantive issue which is governed by the lex loci delicti. The consequence of this is that for publications in each of the States and Territories the relevant section of that State or Territory must be applied. I will take the publications in New South Wales as an example. In assessing damages against the defendant for publications in New South Wales, s 48 of the Defamation Act 1974 (NSW) is to be applied and that section requires this Court to take into account whether the plaintiff has already recovered damages or has brought proceedings for damages, whether these proceedings are or were brought in New South Wales or elsewhere including the Australian Capital Territory, for defamation in respect of any other publication of matter in New South Wales "to the same purport or effect as the matter complained of in the proceedings".
347. Counsel for the plaintiff referred to the difference between the words used in s 135 of the Civil Law (Wrongs) Act 2002 (ACT), namely, "in relation to the published matter" and the New South Wales provision, namely, in respect of any other publication of matter "to the same purport or effect as the matter complained of in the proceedings". He submitted that none of the five actions involved any recovery or action in relation to the published matter. Counsel for the defendant acknowledged the difference in the words used but submitted that the plaintiff's interpretation would mean that the section would have little work to do. In my opinion, the interpretation advanced by the plaintiff is the correct one. The definition of "published matter" is clear, and it means, I think, that in a case such as this only those recoveries and actions which relate to the first and second publications would be relevant. None of the five actions identified by the defendant fall into this category.
348. The consequence of this conclusion is that there are no other recoveries and actions to mitigate the damages to be assessed against the defendant for publications in the Australian Capital Territory. At the same time, the five actions, which each complain of publications in each State and Territory of the Commonwealth, are to be taken into account in relation to the publications in States and Territories other than the Australian Capital Territory. This is because each of them relates to the publication of matters to the same purport or effect as the matter complained of in this action against the defendant.
349. Again, it is convenient to take New South Wales as an example and to consider the position as far as publications by the defendant in New South Wales. Each of the other five actions complain of publications in New South Wales. Under s 48 the matters which may be taken into account are a recovery of damages, a proceeding for damages, or the receipt of, or agreement to receive, compensation. There is no reference in s 48 to the fact that a defendant has given an apology. To my mind, the word "compensation" is not wide enough to embrace the concept of an apology. Even if, contrary to my view, Capt Toohey's apology is to be taken into account in this case then although it has to be said that it is a fairly complete apology, it is not from the defendant and it is a long time (over four years) after the publications which caused the damage.
350. Plainly, the purpose of a provision such as s 48 is to prevent a plaintiff from being over-compensated by being compensated twice for the same loss.
351. I start with the action where damages have been recovered, namely, the plaintiff's action against Capt Toohey. The plaintiff's particulars of the imputations which arose from the material published by Capt Toohey were as follows.
As to the first matter complained of:
1. The plaintiff should be removed from his position as head of the Defence Intelligence Organisation because his conduct in that office was determined by his political allegiance, in breach of his duty to provide accurate intelligence.2. The plaintiff in breach of his duty as Director of the Defence Intelligence Organisation to provide accurate intelligence, had misled the Government and the people of Australia.
3. The plaintiff because his conduct as Director of the Defence Intelligence Organisation was determined by his political allegiance, had put Australian lives at risk.
4. The plaintiff because his conduct as Director of the Defence Intelligence Organisation was determined by his political allegiance, was responsible for a poor standard of intelligence in respect of the events in East Timor in 1999.
As to the second matter complained of:
5. The plaintiff in breach of his duty as Director of the Defence Intelligence Organisation to provide fearless and impartial intelligence advice, distorts the intelligence so as to tell the Government what it wants to hear, and in turn causes the people of Australian to be misinformed.6. The plaintiff breached his duty of impartiality by writing intelligence reports with the object of denying the responsibility of the Indonesian military for atrocities committed by it.
7. The plaintiff in breach of his duty as Director of the Defence Intelligence Organisation pilloried Lance Collins.
8. The plaintiff in breach of his duty as Director of the Defence Intelligence Organisation was responsible for Lance Collins' name appearing on a search warrant.
352. The similarities between these alleged imputations and the imputations I have found arose from the first and second publications may be noted. There is a difference in that there are no imputations alleged in the action against Capt Toohey in relation to the plaintiff cutting the flow of intelligence to Australian troops in East Timor and the plaintiff's personal frustration with Lt-Col Collins. The other observation which I make is that no doubt the plaintiff's costs and disbursements represented a not insubstantial part of the judgment sum.
353. As far as the other four actions are concerned, a provision such as s 48 is not easy to apply where proceedings have merely been brought as distinct from a case where damages have been recovered or compensation received or agreed. In Lewis v Daily Telegraph [1964] AC 234 Lord Reid said (at 261).
Here there were similar libels published in two national newspapers on the same day and each has to be dealt with by a different jury. If each jury were to award damages without regard to the fact that the plaintiffs are also entitled to damages against the other newspaper, the aggregate of the damages in the two actions will almost certainly be too large. Section 12 of the Defamation Act, 1952, is intended to deal with that. In effect it requires that each jury shall be told about the other action, but the question is what each jury should be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiff ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damages suffered by the plaintiffs which ought to enter into the other jury's assessment.
354. I have taken the settlement of the proceedings between the plaintiff and Capt Toohey, and the other four actions into account in relation to the publications in each State or Territory other than the Australian Capital Territory. I have reached the conclusion that the greater part of loss and damage sustained by the plaintiff was caused by the first and second publications. I have reached that conclusion for the following reasons. First, I am not taking the recovery and other actions into account in relation to the publications in the Australian Capital Territory which of course is the place where the plaintiff lived and worked. Secondly, the defendant claimed in the first publication that its story was an exclusive and by its media release it advised other media outlets of the story it was about to publish. Thirdly, the defendant held out The Bulletin magazine as a magazine which dealt with public and current affairs in a serious and considered way. The plaintiff's counsel said that the defendant's magazine was probably regarded as Australia's premier journal of politics and public affairs. It would have been seen as such at the time by those working in government, in the Defence area and in the public service. In saying this, I am not suggesting the other publications would not have had an impact. The defendant's magazine was distributed nationally, whereas the focus of some of the other publications were more limited markets. Fourthly, the first and second publications were published in written form, therefore allowing time for reflection, and the first publication included a near-complete copy of the Toohey report. Furthermore, as far as I can see, the first publication provided the most detailed account of the issues it discussed. Finally, although the evidence, including that of the plaintiff, was fairly general on this point, it was to the effect that the greater part of the damage and injury was done by the first and second publications.
355. Finally, it is necessary to note s 136 of the Civil Law (Wrongs) Act 2002 (ACT) and s 46A of the Defamation Act 1974 (NSW). They are in the following terms:
136. In deciding the amount of damages to be awarded, a court must -(a) ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded; and
(b) take into account the ordinary level of general damages component in personal injury awards in the ACT.
46A . (1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.
(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages).
356. The operation of s 46A(2) of the Defamation Act 1974 (NSW) was considered by the High Court in Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327. Hayne J made a number of points about the operation of the subsection. Gleeson CJ and Gummow J agreed with his observations (at 341 [35]). His Honour noted that s 46A(2) did not prescribe a particular, let alone mathematical, relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. He also noted that damages for defamation must compensate for damage done on the particular plaintiff, just as damages for non-economic loss in personal injury awards must compensate for the effect of the injury on the particular plaintiff. Hayne J said (at 352-353 [74]-[76] (footnotes omitted)):
In the end, what s 46A draws to attention is that damages awarded for defamation must take their proper place in the administration of justice. In particular, they must stand in a proper relationship with awards for the non-economic consequences of personal injury. The relationship which s 46A(2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable....
Treating cases where the damages allowable are capped by statute as included within the "general range" to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way. (original emphasis)
357. I also refer to the observations of Callinan J (at 368-371 [134]-[141] and Heydon J (at 380-387 [174]-[194]) and to the examples of awards referred to in those passages. I have had regard to those awards in applying s 46A of the Defamation Act 1974 (NSW) as far as the publications in New South Wales are concerned and s 136 of the Civil Law (Wrongs) Act 2002 (ACT) as far as publications in the Australian Capital Territory are concerned.
358. I do not think this is a case where it is appropriate to assess the damages on a State-by-State or Territory-by-Territory basis. The plaintiff lived and worked in the Australian Capital Territory. He held a very senior position in the Commonwealth Public Service. The organisation of which he was the director had considerable contact with the Government of the day and its advisers, the Defence Forces and in other areas within the public service. The greatest damage would have occurred in those areas, namely, in the Government, the Defence Forces and the public service, and in the Australian Capital Territory and New South Wales. Although it is not possible to be precise, perhaps it can be said that in terms of damage the next level is Queensland and Victoria and then followed by the remaining States and Territories.
359. The imputations were very serious and no doubt had a considerable effect on the plaintiff. I was referred to awards in other cases or awards not disturbed on appeal: Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176; Rogers v Nationwide News Pty Ltd (2003) 216 CLR at 351-354 [72]-[82]; Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933; McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147. I have had regard to those authorities.
360. Taking into account all the matters I have identified I think an award of damages of $325,000 is appropriate.
361. The plaintiff also claims aggravated damages. These damages are compensatory in nature: Rookes v Barnard [1964] UKHL 1; [1964] AC 1129; Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118. In terms of the three purposes identified in Carson [1993] HCA 31; 178 CLR 44, aggravated damages will relate primarily to the personal distress and hurt caused to the plaintiff by the publication, but may also relate to factors relevant to injury to reputation. The circumstances in which the Court will award aggravated damages were considered by the High Court in Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497. Generally speaking, an award will be made only if the plaintiff is able to show a lack of bona fides in the defendant's conduct or that it is otherwise improper or unjustified. The pursuit of a bona fide defence and evidence honestly given in support of such a defence is not a basis for awarding aggravated damages.
362. In New South Wales, damages are not to be affected by the malice or other state of mind of the publisher except so far as the malice or other state of mind affects the relevant harm: s 46(3)(b) Defamation Act 1974 (NSW).
363. The question in this case is whether there are aggravating features which mean that additional injury or harm has been caused to the plaintiff and whether those features show a lack of bona fides in the defendant's conduct or that it is otherwise improper or unjustified. In my opinion, there are such features.
364. The more significant matters are as follows. First, the plaintiff's distress and hurt was aggravated by the fact that he knew that Mr Lyons had written articles in 1999 which were premised on the independence of DIO and the good quality of the assessments it produced. The plaintiff said that he found it difficult to understand how Mr Lyons could have written what he wrote in the first and second publications having regard to the articles he wrote in 1999. The plaintiff submitted that in making the publications the defendant was actuated by malice and that I should take that into account in awarding aggravated damages. I have found that the defendant was wilfully blind as to the truth or falsity of the imputations concerning the distortion of intelligence assessments. That finding is based, in large measure at least, on what Mr Lyons wrote in 1999. The plaintiff was aware of that and in this way the defendant's state of mind or purpose is relevant to the award of aggravated damages. Secondly, the defendant made no inquiries of the plaintiff and a number of other persons who might have provided relevant information in circumstances which clearly called for such inquiries (see [235]-[237] above). Thirdly, I think the way in which the defendant has conducted the litigation is an aggravating factor. The solicitors for the plaintiff wrote to the defendant on 4 May 2004 seeking an apology and retraction. The solicitors for the defendant wrote to the plaintiff's solicitors on 10 May 2004. They said that they did not agree that the publications conveyed all the meanings alleged, "but those meanings so conveyed are justified by either the evidence of LTCOL Collins and others, or by the findings of Captain Toohey". They offered to publish an article giving the plaintiff's version of the relevant events. On 19 January 2005, the defendant again refused to apologise and its solicitors wrote to the plaintiff's solicitors advising them of that fact.
365. On 16 December 2005, the solicitors for the defendant wrote to the solicitors for the plaintiff and said:
The defendant denies that the imputations pleaded in your letter of 19 October 2004 are capable of being conveyed by the matters complained of. In relation to any imputation defamatory of the Plaintiff conveyed by the matters complained of the Defendant relies on the following particulars of truth: ...
The defendant's solicitors provided 23 particulars of truth. I will not set them all out. It is sufficient to say that in a number of cases they seek to support imputations not dissimilar to those which I have found. It is sufficient to quote three of the particulars.
(a) During the period in which the Plaintiff was Director of the Defence Intelligence Organisation (DIO), he should have been aware of and was hence responsible for, within the DIO, a process of equivocal intelligence reporting regarding atrocities committed in East Timor by the Indonesian armed forces and resulting in the Australian Government publicly and wrongly attributing such atrocities to `rogue elements' of the Indonesian armed forces....
(l) Access to the intelligence database was deliberately cut by an officer of DIO acting either under the authority and/or the direction of the Plaintiff.
...
(r) The Plaintiff as Director of DIO liaised either directly or through his officers, with the Australian Federal Police and or other agencies about likely suspects to have leaked the confidential material.
366. It was only on 20 July 2007, which was shortly before the commencement of the trial, that the solicitors acting for the defendant wrote to the solicitors acting for the plaintiff advising them that the defendant would not be pressing its defences of justification.
367. At trial, the defendant maintained that the plaintiff had directed that access to the database be cut and that he had attempted to prevent Lt-Col Collins from engaging in accurate and constructive criticisms of DIO assessments. I have rejected both of those assertions. The defendant's counsel vigorously cross-examined the plaintiff about his involvement in the loss of access to the database and the events thereafter. The defendant maintained that the plaintiff directed that the database be turned off or, at least by 21 December 1999, knew that access had not been lost for technical reasons. The defendant submitted that the plaintiff knew that the statutory declaration he provided to the Blick inquiry was false and contributed to "the miscarriage of the Blick inquiry". As I have already said, none of these matters have been made out.
368. Other matters which are relevant to the question of whether aggravated damages should be awarded but which are of less significance are as follows. The first and second publications were distributed and sold within all States and Territories and the language and presentation of the publications was in a number of respects sensational and dramatic. Mr Lyons went beyond the Toohey report in some areas and a number of his other statements in the publications were incorrect. Most notable of the respects in which he went beyond the Toohey report was his assertion in the second publication that Australian troops were endangered by the loss of access to the database. The imputations conveyed by the defamatory matter were false. The defendant failed to make reference, or at least detailed reference, to Mr Blick's findings in either of the publications. The plaintiff was held in high regard before the first and second publications and the publications attacked characteristics which were very much part of that high reputation, namely, his reputation for courage and independence. Finally, the defendant has steadfastly refused to apologise and in the circumstances of this case this is conduct which can be taken into account in determining general or normal compensatory damages or in determining aggravated damages: Carson 178 CLR at 66 per Mason CJ, Deane, Dawson and Gaudron JJ; Clark v Ainsworth (1996) 40 NSWLR 463.
369. In my opinion the features I have identified justify an award of aggravated damages. I award a sum of $50,000.
370. The plaintiff also claims exemplary or punitive damages.
371. Exemplary damages may not be awarded for the publications in New South Wales by reason of s 46(3) of the Defamation Act 1974 (NSW). That section relates to the kinds of damage which may be recovered and therefore is a substantive issue governed by the lex loci delicti: John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503.
372. In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 the High Court affirmed the proposition that in actions in tort, exemplary damages may be awarded for conduct of a sufficiently reprehensible kind. The Court declined to follow the restricted approach taken by the House of Lords in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129.
373. In Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8 the High Court said:
In Rookes v Barnard, Lord Devlin explained a number of cases of damages at large in terms of aggravated damages rather than exemplary damages. Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded `as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself': Wilkes v Wood [(1763) Lofft 1 at 19; 98 ER 489 at 498-499], per Pratt LCJ).
The Court also said that the absence of actual malice did not disentitle the plaintiff to exemplary damages (at 13).
374. The purposes of an award of exemplary damages are to punish the defendant and to deter others from engaging in similar conduct. The conduct necessary to support an award of exemplary damages has been described as "conscious wrong-doing in contumelious disregard of another's rights": Uren v John Fairfax and Sons Pty Ltd 117 CLR at 154 per Windeyer J; see also at 122 per McTiernan J; at 138 per Taylor J; at 147 per Menzies J; at 160 per Owen J.
375. In my opinion this is not an appropriate case for the awarding of exemplary damages. I have reached that conclusion for two reasons. First, although I have found that the defendant was wilfully blind as to the truth or falsity of the imputations relating to the distortion of the intelligence assessments, I am not persuaded that in all the circumstances it is appropriate to characterise the defendant's conduct as being "conscious wrong-doing in contumelious disregard of another's rights" or, to use other expressions used in the cases, as wanton or oppressive or insulting or insolent. There was an element of contempt for the plaintiff's rights no doubt, but I do not think that overall it is appropriate to characterise the defendant's conduct in such a way as to justify an award of exemplary damages. Secondly, I think the purpose of punishment and deterrence, insofar as they are relevant, are met by the award I will make for compensatory damages: Musca v Astle Corporation Pty Ltd [1988] FCA 4; (1988) 80 ALR 251 at 269 per French J; Cassel and Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1089 per Lord Reid.
VII CONCLUSION
376. The plaintiff is entitled to damages from the defendant in the sum of $375,000. That sum comprises ordinary or normal compensatory damages of $325,000 and aggravated damages or an allowance for the aggravating features in the case of $50,000. I will hear the parties as to other orders including orders as to interest, vindication of the plaintiff's reputation and costs.
I certify that the preceding three hundred and seventy six (376) numbered paragraphs and Annexures 1 and 2 are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate:
Date: 23 July 2008
Counsel for the Plaintiff: Mr P W Gray SC with Mr A F Gemmell
Solicitor for the Plaintiff: Colquhoun Murphy
Counsel for the Defendant: Mr B R McClintock SC with Mr M Richardson
Solicitor for the Defendant: Johnson Winter & Slattery
Dates of hearing: 27, 28, 29, 30, 31 August and 3, 4 5, 6 September 2007
Date Last Submission Received: 16 July 2008
Date of judgment: 23 July 2008
IMPUTATIONS ALLEGED BY THE PLAINTIFF, AND PASSAGES EXTRACTED FROM THE FIRST AND SECOND PUBLICATIONS AND THE TOOHEY REPORT, UPON WHICH THE PLAINTIFF RELIES IN RELATION TO EACH OF THOSE IMPUTATIONS
THE FIRST PUBLICATION
Imputations (a), (b), (c)
Particulars
The matter complained of as a whole, in particular (without limitation): the front cover, the contents page, pages 30 and 31, page 32 (column 1 - lines 15 to 21; column 2 - lines 28 to 43; column 3 - lines 31 to 40), page 33 (column 1 - lines 28 to 31; column 2 - lines 6 to 11; column 3 - in its entirety), page 34 (column 1 - lines 36 to 48; column 2 - lines 1 to 36; and photo caption), page 36 (column 1 - lines 6 to 39, lines 56 to 64), and the Toohey Report at numbered paragraphs 4, 11-21, 27-41, 120, 130, 131, 135, 148.
The front cover:
DEFENCE SCANDAL by John Lyons
REVEALED:
Ø Our intelligence failures
Ø The secret report the government doesn't want you to see
The contents page:
COVER STORY APRIL 20, 2004
DEFENCE SCANDAL
It began as an investigation into a senior officer's complaints about his treatment by the army. But a leaked copy of the inquiry's explosive report has damned Australia's intelligence services. By John Lyons
The Full Report CENTRE PAGES
Pages 30 and 31:
ROTTEN TO THE CORPS
As one of Australia's finest soldiers, Lt Col Lance Collins grew used to having to defuse a crisis. But a month ago, unable to contain a growing sense of frustration and anger, he decided the time had come to expose one. The man acknowledged by many as the army's leading intelligence analyst sat down at his computer in his Sydney home and began composing an explosive letter to the Prime Minister, John Howard.
"Dear Prime Minister," Collins wrote, "I am an army intelligence corps officer and it was my honour to be the principal intelligence officer for General Cosgrove in East Timor."
"I am writing to inform you of the failure of ..."
...
It began as an investigation into a senior officer's complaints about his treatment by the army. But a leaked copy of the inquiry's explosive report has damned Australia's intelligence services. The inside story of one man's pursuit of the truth.
Page 32:
Column 1, lines 15-21
With Australia's intelligence services under increasing attack for appearing to tailor their reports to suit government policy, Collins' uncompromising appraisal of our intelligence shortcomings both before and during the Iraq conflict is certain to shake the foundations of the defence establishment.
Column 2, lines 28-43
Toohey's report has delivered a blistering attack on the methodology and failures of Australian intelligence and its leading officials. It has found that:
* A "pro-Jakarta" lobby exists within the Defence Intelligence Organisation "which distorts intelligence estimates to the extent those estimates are heavily driven by government policy ... in other words, DIO reports what the government wants to hear."
* A parliamentary inquiry should be held into "systemic issues" within the intelligence system, "primarily the fact that the product is driven by the policy of the government of the day" and formulated by officers with little or no career intelligence expertise.
Column 3, lines 31-40
In his summary, Toohey says: "I find as a fact that a pro-Jakarta lobby exists in DIO, which distorts intelligence estimates to the extent those estimates are heavily driven by government policy which overlooks (or attributes the blame to other factions) atrocities and terrorist activities committed by the TNI (the Indonesian military) - in other words DIO reports what the government wants to hear".
Page 33:
Column 1, lines 28-31:
One of Collins' claims is that a senior military figure said words to him to the effect: "We have a plan with the Indonesians to keep everybody else out of East Timor."
Column 2, lines 6-11:
What it reveals is an atmosphere of political intrigue, personal character assassination and growing evidence of an intelligence bureaucracy more intent on serving its political masters than fulfilling its duty to protect the Australian national interest.
Column 3, in entirety:
We need a royal commission
As a soldier and a senior military intelligence figure, Lance Collins has served his country faithfully for more than two decades. His loyalty and commitment to reporting the truth has cost him dearly. It's now time for that debt to be repaid.
Nothing short of a royal commission will fully resolve the question marks hanging over the quality of Australia's intelligence services, much less the treatment handed out to Collins in the past few years.
The Bulletin has chosen to publish the restricted report by retired naval barrister Captain Martin Toohey in the public interest. We believe that in a climate where national security remains the highest priority for the federal government, the disturbing findings of the Toohey inquiry raise issues that should be debated and scrutinised by all Australians.
While the Toohey report principally examines the events surrounding Australia's deployment of troops to East Timor and the subsequent shabby treatment of Collins by the defence establishment, it raises alarming questions about the manner in which this country receives and interprets its intelligence.
If, as Toohey has found, a "pro-Jakarta" lobby exists within defence intelligence and shapes its reports to the government based on this bias, how certain can we be that the rest of the intelligence the government relies upon is also not subject to similar biases? A pattern is already evident. The so-called intelligence evidence relied upon by the United States, the United Kingdom and Australia as justification for the war in Iraq lies in shreds. And several other regional incidents in recent years - from the Bali bombing to the Fiji coups - were never in the sights of our intelligence agencies.
John Howard has staked his personal future, and that of his government, on the promise of protecting Australia's national security. Without a royal commission, that promise will sound hollow. And its echoes will be heard for years to come.
Garry Linnell
Editor-in-Chief
Page 34:
Column 1, lines 36-48; Column 2, lines 1-36
In July 1998 - a year before Interfet - Collins, then attached to the Headquarters Australian Theatre (HQAST), had prepared a secret intelligence report on the increasingly-troubled East Timor situation. His commander asked him to send it to the DIO. Collins warned of the likelihood of East Timor becoming very unstable in the future and the possibility of widespread violence orchestrated by elements of the Indonesian military and their militia forces. His estimate proved to be accurate, but he warned that a "Jakarta lobby" in Canberra had the potential to distort Australia's policy towards Indonesia.
Collins received no response from DIO to what he believed was an important assessment. He couldn't understand why. Soon after, at a meeting organised at DIO headquarters, he was "cautioned" by two DIO officers against producing any such material in future. No discussion about the merits or conclusions in his report took place. The HQAST was also sent a letter cautioning them against producing any further such material.
Collins, who had forged a reputation for forthright views and being unafraid to express them, would not be silenced. This time DIO wrote to Cosgrove - then the head of the army - to complain. Collins says he was told by one of his superiors to "desist" from making any observations about East Timor.
Despite the fact he was now unpopular within the Defence establishment, when Interfet moved into East Timor Cosgrove overlooked this to draw on his experience. Collins was deployed to East Timor from September 1999 until February 2000.
Even though he was running Australia's intelligence activities in East Timor, Collins came to believe that Australian forces on the island had been cut off from top-secret intelligence from DIO. Collins was also growing increasingly dissatisfied with the support being given by the highly secretive Defence Signals Directorate.
On his return to Australia, he was bluntly warned: "Watch your back because the knives are out for you in Canberra." He was told he was not popular within the DIO or DSD.
Caption with photo of Lt-Col Collins
LONE VOICE, Lance Collins' warnings that TNI's involvement in East Timor would create violence rather than prevent it were not what some in Canberra wanted to hear.
Page 36:
Column 1 - lines 6-39
[Toohey's extensive report ... concludes:]
§ I recommend that the entire intelligence-gathering process, embracing ALL agencies (subject to national security caveats) be referred to the Senate Foreign Affairs and Trade Committee to ensure objectivity, professionalism and the timely provision of assessments to governments without fear or favour.
§ I recommend that defence intelligence agencies show more objectivity in their assessments rather than attempting to report what those agencies think DFAT (Department of Foreign Affairs and Trade) and the government of the day wants to hear.
§ Systemic issues remain in Australia's intelligence system, primarily the fact that the product is driven by the policy of the government of the day and formulated by "cross-posted" officers with little or no career intelligence background.
Lance Collins' main clash with DIO was that he believed intelligence assessments had been hijacked by the "pro Jakarta lobby". Indeed, several key figures in the Defence department agreed that the Jakarta lobby exerted enormous influence. One officer said "briefings given to the Australian Parliament (by DIO Jakarta apologists) indirectly caused the Australian public to be continually misinformed".
Another officer said anyone who provided a contra view to the "orthodox stance which was less critical of some of Indonesia's activities" automatically stood out as being different.
Column 1 - lines 56-64
Collins made clear throughout his military career that he was not interested in providing the people above with information tailored to suit the political doctrine of the day. It appears to have cost him his career. But out of the wreckage of his personal ambition has come a new mission: to cleanse the system and salvage and restore the credibility of Australia's intelligence community.
Toohey Report
(Numbered paragraphs 4, 11-21, 27-41, 120, 130, 131, 135, 148)
Paragraph 4:
4. The ROG submitted by LTCOL Collins has considerable veracity and does not make for pleasant reading. Indeed, the Army's treatment of this officer over the last three years has been nothing short of disgraceful. Shades of the recent Dr Kelly scandal in the United Kingdom and the Wilkie departure from ONA immediately come to mind. After the recent suicides of MAJ Jenkins and PTE Williams, it seems the ADF has learnt nothing. I will explain.
§ LTCOL Collins is arguably the Army's top intelligence analyst. His loyalty is beyond reproach and his intellect is towering: He does not suffer fools gladly and has a propensity for telling the truth, regardless of Government policy. This latter fault (if indeed it could be described as such) has resulted in his ostracisation from the intelligence community, his peers sniggering behind his back, the virtual destruction of his career, personal problems, a strain on his health (to which he will not readily admit) and a denial of legal assistance at a key meeting at which he attempted [to] air [sic] his concerns regarding systemic intelligence failures.
§ After the expiration of almost three years, LTCOL Collins has yet to be given any explanation as to why his name was one of ten individuals identified on an AFP search warrant, which was in turn, exposed on the national media - his house was not searched.
§ Noting that he had no knowledge he was the subject of a security investigation, even after he was "cleared" of any involvement, it is untenable that the first he should hear of the matter was when his wife saw details of the warrant on the front page of a major metropolitan newspaper, following which the story was aired on the ABC's "Four Corners" program and in the Canberra Times newspaper.
§ On 6 December 2000, LTCOL Collins wrote to the Minister for Defence outlining his concerns regarding the deteriorating situation in East Timor and the efficacy of the Australian intelligence system, however, the matter was passed to IGIS for investigation, with a heavily edited report finally being sent to the officer on 22 July 2003.
§ Notwithstanding an excellent PR19 countersigned by MAJGEN Cosgrove, combined with glowing verbal praise from the now CDF regarding LTCOL Collins' efforts during INTERFET, he was not nominated for any honour or award - no satisfactory explanation could be obtained from any of the relevant Chiefs of Staff.
§ Systemic issues remain in Australia's intelligence system, primarily the fact that the product is driven by the policy of the Government of the day and formulated by "cross-posted" officers with little or no career intelligence background. These should be the subject of a Parliamentary Inquiry.
§ Three of the complainant's PR19s were not received by DOCM, despite LTCOL Collins being in the zone for promotion - his 2000 report appears to have been lost without trace in the system, whilst no reports [were] raised [sic] for 2001 or 2002. I have been unable to ascertain whether these discrepancies were the result of malice or sloppy administration.
§ LTCOL Collins' 2000 PR19 (not received by DOCM) was superficially very good, but not of sufficient quality to be favourably viewed by the PAC - his reporting officer vigorously denied that he had " dammed [sic] LTCOL Collins with faint praise".
§ In the above context it is noteworthy that his 1999 PR19, countersigned by MAJGEN Cosgrove, reflected "excellent" in all but two fields.
Paragraphs 11 to 21:
11. Synopsis of complaint - follow-up interview with LTCOL COLLINS. I found LTCOL Collins to be a most credible, forthright, loyal and extremely intelligent witness, who, because of his dedication to the Army, had deliberated for two years before reluctantly submitting this AROG. If any fault was to be identified in his personal profile, perhaps his preoccupation with his predicament (as articulated in his ROG), impacted adversely on his work performance in HQ Training Command.
12. By way of background, in 1998, LTCOL Collins was in his second year of a posting as Deputy J2 Intelligence, at Headquarters Australian Theatre (HQAST). In the middle of that year he completed an intelligence estimate on East Timor which was sent to the Defence Intelligence Organisation (DIO) for comment, (on the directive of the Commander HQAST), however no comment from DIO was ever received. Notwithstanding the fact that LTCOL Collins' assessments proved accurate, the tenor and spirit of his written presentation, which was critical of the efficacy of Defence Intelligence, aroused some concerns in DIO and the Department of Foreign Affairs and Trade (DFAT).
13. LTCOL Collins said he subsequently visited DIO in an attempt to "talk it through", but instead was cautioned by two nominated staff against producing such material in future. When I questioned the complainant further as to the attitude of the DIO staff, he replied that his estimate had pointed to the situation in East Timor becoming very unstable in the future and the possibility of a peacekeeping force being deployed. He said he also pointed to the role of the "Jakarta Lobby" in policy formulation, which he added was probably not what DIO wanted to hear.
14. Notwithstanding that there was no feedback from DIO, LTCOL Collins said that within a week of him submitting the report referred to above, AST received a letter from SIP Division cautioning the Headquarters against producing such material on East Timor.
15. LTCOL Collins went on to state that later in 1998, a "senior officer of the Australian Defence Force", namely General Baker (the CDF), told him, in the context of a conversation of what LTCOL Collins was working on, namely a re-estimate on Timor, words to the effect of, "[y]ou don't have to worry about that because we have a plan with the Indonesians to keep everybody else out of East Timor".
16. In January 1999, LTCOL Collins was posted from HQAST [to] Joint Force Headquarters (JFHQ) Brisbane as the J2. During that period LTCOL Collins said he kept a "close eye" on East Timor and he felt it necessary to comment further on DIO's "muted" comments on that area. He went on to say that that [sic] those comments sparked another letter from DIO (specifically from a Mr [...] who had previously cautioned LTCOL Collins), who wrote to GEN Cosgrove in an effort to "put an end to my commentary on DIO's assessments. In the event, LTCOL Collins said he was told to "desist" by his [...].
17. At this time, LTCOL Collins formed a loose professional relationship with a CAPT Clinton Fernandes, who was an analyst in the Australian Joint Intelligence Theatre (ASTJIC) Sydney and who it appeared, shared similar views regarding Indonesia's position vis-à-vis East Timor, as the complainant.
18. LTCOL Collins went on to state that in about July or August 1999 the situation in East Timor became rapidly destabilised and the JFHQ was ordered to deploy a peacekeeping force (or peacemaking force under Chapter 7 of the UN Charter) and the DJFQ was to comprise the basis of the forces acronym: INTERFET. LTCOL Collins was then deployed to East Timor as C2 from September 1999 until February 2000, despite his intuitive feelings that [the] Army would have preferred to send somebody else.
19. LTCOL Collins drew my attention to two incidents (relevant to my investigation) which occurred during INTERFET. Firstly, he stated that INTERFET was cut off from the Top Secret Intelligence emanating from DIO, with contradictory explanations given. Secondly, LTCOL Collins said he was dissatisfied with the support being received from the Defence Signals Directorate (DSD) and in that context, wrote to DSD's Director of Operations. When asked to expand on his concerns, LTCOL Collins said he was dissatisfied with the conduct of DSD personnel in East Timor and with the Australian Electronic Warfare System generally, combined with the overall lack of support from DSD. He added that the DSD support was effective, but could have been more so.
20. LTCOL Collins said that when he returned to Australia, and in the course of a visit to Sydney, he was warned by two people in HQAST to the effect that "[w]atch your back, because the knives are out in Canberra for you". He named those people as COL Patrick Gallagher and LTCOL Lester Sutton. The former officer also told LTCOL Collins he had had discussions with the Director of DIO about LTCOL Collins, in the context of "leaks".
21. Further, COL Gallagher informed the complainant that the Director of DIO was annoyed with him (LTCOL Collins) and that he was unhappy that the entire world was reading INTERFET Intelligence Reports, which were going out at an unclassified level, virtually through the INTERFET system, as well as the Secret linkage back into the Australian System. LTCOL Sutton indicated to LTCOL Collins that he (the Director of DIO) was furious that DIO's product was being disregarded. Lastly, LTCOL Collins said he was warned by LTCOL M Welsh, a former CO of 3RAR in East Timor, to "watch your back" because he (LTCOL Collins) was not popular at the higher levels of DIO and DSD.
Paragraphs 27 to 41:
27. LTCOL Collins said that he wrote to the [sic] Minister Moore in December 1999 regarding three interrelated aspects of the intelligence system with which he had a problem. (The letter was classified "Confidential" and is not included in this Report). [Original emphasis.]
28. Firstly, LTCOL Collins expressed concern regarding the possibility of some Australian Officials having a too sympathetic attitude towards Indonesian foreign policy (hereinafter referred to as the Djakarta [sic] Lobby). Secondly, he expressed reservations regarding a matter (beyond my remit), namely the suicide of MAJ Jenkins in the USA. Lastly LTCOL Collins drew attention to deficiencies in the intelligence system, particularly its analytical function leading up to and including INTERFET. These deficiencies were, inter-alia intelligence failures in the cases of:
§ The Fiji Coups
§ Sandline - Bouganiville [sic] - not predicted
§ Asian financial crisis - not predicted
§ Fall of Suhnharto [sic]
§ Indon Spy I - Toohey (media) Sep 1999
§ East Timor - equivocal intelligence, maintenance of factions line (eg DIO analyst visit to Dili Jan 2000 and comment on loss of control
§ Minister Downer stating that leaks were selective
§ Quality in Intelligence - action in mid-1999 due to faulty intelligence
§ Quality of Intelligence - EW aspects
§ Intelligence split with allies
§ [...] - no appetite for PKF - poor situational awareness
§ ASIO - not catching anyone during necessary during [sic] period
§ Solomons - no "wng" - poor data base
§ Terrorism - OBL at large - ASIO/AFP raids damaging for nil return
§ Leaks investigation - direction - conduct - Defence applying to "tap the Hon Laurie Brereton's telephone
§ Iraq - no estimate - wrong situational advice to Government leading to bellicose statements which had no public support
§ Murder of OPM Leader
§ Freeport.
The "Pro-Jakarta Lobby" - An Explanation
29. Frequent references to the above term will appear in this Report. Extrapolating from the first point made by LTCOL Collins in para 18 (above), CAPT Fernandes expanded at great length on his perception of the Jakarta Lobby, within DIO and DFAT. In essence, the officer said that the basic premise advanced by the Jakarta lobby is a policy of denial, regarding atrocities committed by the Tentera Naional [sic] Indonesia (TNI) and publicly attributing atrocities (including human rights violations) in East Timor [and] [sic] elsewhere in Indonesia to "rogue elements" of the TNI and not to the TNI per se.
30. CAPT Fernandes went to considerable length to explain the methodology used by DFAT and DIO Jakarta apologists, to the extent that briefings given to the Australian Parliament by them were heavily biased in favour of the official Indonesian line, thus indirectly causing the Australian public to be continually misinformed. He went on to say that LTCOL Collins, invariably promulgated an - email in response correcting those assessments, thereby raising the ire of pro-Jakarta elements in DIO and DFAT. He "named names" in those two organisations who were active proponents of the Jakarta line, and added that LTCOL Collins was invariably correct in his intelligence assessments. ...
31. The above news of CAPT Fernandes were corroborated to a degree when I interview[ed] [sic] COL P J Gallagher, who told me that for a long period of time the Government view and therefore the view of the bureaucracy, was that up until the invasion of East Timor by the Indonesians up until 1999 developed into an orthodoxy such that anybody who provided a contra view to the orthodox stance (taken by DIO and DFAT), which was essentially less critical of some of Indonesia's activities, automatically stood out as being "different".
32. When interviewed, MAJ [...] corroborated LTCOL Collins' strongly held views regarding the existence of a pro-Jakarta lobby and that his views, were, in her opinion absolutely true. She added the qualifier that LTCOL Collins was often so possessed by what he thought and believed, he was sometimes professionally disregarded by his colleagues. She opined that that [sic] INTERFET and certainly the mission in East Timor would not have been successful, or even possible, but for the intelligence estimates provided by LTCOL Collins to the then MAJGEN Cosgrove. ...
33. COL LJ Sutton, when interviewed, confirmed that Australian policy pre-INTERFET, was, in his words, to "vote Indonesia as a country", meaning that East Timor remain part of Indonesia. He said that, in his view, the intelligence estimates being produced by LTCOL Collins ranged beyond the tactical and operational areas to "mainly what Jakarta was doing", which caused some angst in DIO inasmuch as these estimates differed from DIO's own product. ...
34. Of relevance to this heading and other sections of my TOR is a remark made my [sic] CAPT [...] when interviewed by me. In the context of being asked whether he wished to comment on any systemic issues within the Defence Intelligence Organisation arising in the context of LTCOL Collin's [sic] ROG, he stated inter alia, that, albeit from his limited perspective, the intelligence system has, for a long time [been] too closely wedded to the political system, where policy or agenda has driven assessment, rather than the other way around ... which creates problems when dealing with information, data and facts from which objective, unbiased assessments have to be produced. CAPT [...] added that when senior management in Canberra read those assessments and disagree with the content, management the [sic] attacks the author of the document(s). ...
35. My final interviewee on this aspect was with LTCOL Daryl Clarke, who expressed strong views on deficiencies in the Defence intelligence system, in the context of that organisation being slanted towards a pro-Jakarta lobby. LTCOL Clarke commented, in the context of Defence intelligence analysis, that people are waiting to hear what the people above are waiting to know and then they tell them what they want to know. LTCOL Clarke went on to draw an analogy between the existing situation and the fable of the "Emperor's New Clothes". No further expansion is considered necessary on this comparison.
36. LTCOL Clarke speculated that peoples'(sic) personal ambition and the culture [of] the bureaucratic ladder ... through promotion ambitions, may be driving the existing culture. He added in nearly every area in Defence, the climb up the ladder is more important than getting the job done. ...
37. A most informative conversation took place between myself and COL M Norris, mainly concentrating on his relationships with LTCOL Collins and CAPT Fernandes at ASTJIC in 1998. COL Norris told me that he first became aware of a pro-Jakarta lobby in DFAT and DIO in mid 1998 and went on to say that LTCOL Collins' strong anti-Jakarta views were apparent to him.
38. The officer stated that intelligence assessments written by LTCOL Collins for higher level attention, [were] in fact sent to DIO desk officers only. He confirmed that an assessment written in 1998 by LTCOL Collins produced a very "nasty" response from SIP Division, which was a cause for concern. He added that LTCOL Collins expressed concern that DIO was not producing a quality (intelligence) product for INTERFET.
39. Finally, I showed COL Norris a photocopied picture of a coffee mug - it (the mug) having been produced by COL Norris' own branch, with the wording in large letters, " WHERE THE HELL IS THE STRATEGIC ESTIMATE??!!!" inscribed on it. COL Norris told me that the mug was produced because HQAST had been working in a vacuum, notwithstanding that Intelligence Estimates are the keystone to any operation. ...
Pro-Jakarta Lobby - DIO's perspectives
40. The Director of DIO, Mr W F Lewincamp categorically rejected any interpretation that DIO was influenced by a political agenda. He said that DIO publishes according to what the organisation sees as their assessment of the situation. He criticised LTCOL Collins' frequent modus operandi of usurping DIO's role of producing strategic intelligence which falls within the bailiwick of the latter organisation. He said that this included material contrary that [sic] produced by DIO and ONA, thereby causing confusion, particularly observing that LTCOL [sic] had given his assessments a wide distribution with [sic] the Defence intelligence network. In short, Mr Lewincamp said that if LTCOL Collins had any criticisms of DIO he should communicate with that agency directly, rather than initiate snide comments to a wide audience. ...
41. I then carried out a brief telephone conference with Mr Kevin Windsor [sic], who is currently stationed in London, but worked [sic] DIO Headquarters at the material time(s). Mr [Winsor] offered the view that LTCOL Collins had, in his intelligence assessments, overstepped the mark and strayed into areas of policy. Mr [Winsor] went on to refute LTCOL Collins' views that DIO had acted as apologist for the TNI. He said that the assertion that there was [sic] clique of Indonesian apologists in DIO could be taken with a grain of salt - DIO was aware of government policy but no one was ever stifled as far as writing anything critical [of that policy]. Finally, Mr [Winsor] offered the view that LTCOL Collins misinterpreted any criticisms of his intelligence estimated [sic] as personal attacks on the officer.
Paragraph 120:
120. I directed LTCOL Clarke's attention to the alleged existence of a pro-Jakarta lobby. He opined that it constitutes another example of what is happening in the military environment, where people are waiting to hear what the people above know, and then telling them what they want to know. By way of explanation he drew the example of tale [sic] of the Emperor's new clothes. He added that he noted the first priority in every area of Defence is getting promoted, rather than getting the job done.
Paragraphs 130 to 131:
Set out at [52].
Paragraph 135:
Set out at [52].
Paragraph 148:
Set out at [52].
Imputations (d) and (e)
Particulars
The matter complained of as a whole, in particular (without limitation): the front cover, the contents page, pages 30 and 31, page 32 (column 3 - lines 41 to 47), page 33 (column 1 - line 1), page 35 (column 3 - lines 23 to 29), page 36 (column 1 - lines 1 to 5) and the Toohey Report at numbered paragraphs 11-21, 49, 50, 52, 83-88, 130-132, 134, 148.
The front cover and contents page:
Set out above in this Annexure.
Pages 30 and 31:
Set out above in this Annexure.
Page 32:
Column 3, lines 41-47
Another of Toohey's findings is certain to spark debate. He found, as a matter of fact, that Lewincamp, one of the nation's most senior intelligence bureaucrats, became so frustrated with "the activities" of Collins in East Timor that he caused the flow of intelligence to Australia's soldiers in East Timor during the Interfet operation to be "suspended for approximately 24 hours".
Page 33:
Column 1, line 1
... Collins' assessments proved accurate.
Page 35:
Column 3, lines 23-29
Toohey's extensive report amounts to one of the most comprehensive inquiries into how Australia's military intelligence operates. It concludes:
§ I find as a matter of fact that the director of DIO (Mr Frank Lewincamp) became frustrated with the activities of Lt Col Collins ... [continued on page 36 column 1, lines 1-5]
Page 36:
Column 1, lines 1-5
...during Interfet; that he caused the flow of intelligence to East Timor to be suspended for approximately 24 hours and that, further, he wrote to the Interfet Commander in an attempt to muzzle Lt Col Collins.
The Toohey Report
(Numbered paragraphs 11-21, 49, 50, 52, 83-88, 130-132, 134, 148)
Paragraphs 11 to 21:
Set out above in this Annexure.
Paragraph 49:
49. In an interview with COL David Gillian, that officer stated that it was clear that LTCOL Collins, on his return to Australia, had "ruffled more than just a few feathers and certainly in DIO in particular" in terms of being the most vociferous in identifying the perpetrators of TNI-sponsored atrocities in East Timor. COL Gillian added that whilst he had not heard the term "watch your back" being expressed against LTCOL Collins, he could understand how it may have been used by others.
Paragraph 50:
50. In a continuation of my interview with COL Gallagher ..., the officer said that there were a number of people who were extremely irritated with LTCOL Collins, on the officer's return from Timor, particularly with regard to certain things LTCOL Collins had been saying in the context of INTERFET. Also relevant to people's irritation was a body of work produced by LTCOL Collins in 1998 which, in the opinion of COL Gallagher, was extremely prescient regarding the developing problems in East Timor. In particular, COL Gallagher recollected a degree of irritation emanating from the Director of DIO (Mr Lewincamp) with regard to the way LTCOL Collins had gone about voicing his disapproval of the product emanating from DIO in 1999/2000. ...
Paragraph 52:
Set out above in this Annexure.
Paragraphs 83 to 88:
83. LTCOL Collins, in his supplementary interview ..., drew my attention to the main substance of the meeting, that being an admission by Mr Lewincamp that he had tried to take action against the officer. LTCOL Collins said that this took the form of Mr Lewincamp being one of the core of people in the intelligence community who "had the knives out" for him on his return from INTERFET. LTCOL Collins asserted that at the meeting, in denying this claim, Mr Lewincamp said, "If I target someone they fall down" or words to that effect. That was followed up by Mr Lewincamp saying further words to the effect that "you should look at my [i.e. Mr Lewincamp's] record". LTCOL Collins went on to say that during the next two hours, when reminded of that statement, Mr Lewincamp attempted to deny its meaning, at one stage saying "there is not a trail of hundred (sic) bodies in my wake".
84. LTCOL Collins said later that during the meeting, Mr Lewincamp said that he had complained on more than one occasion about the officer to his (LTCOL Collins') superiors in the operational chain. Mr Bryan's notes, although eight pages in length, did not contradict LTCOL Collins' version of Mr Lewincamp's anti-Collins statements - those notes are not attached to my Report as they mainly address intelligence methodology not relevant to my TOR.
85. An 11 page commentary from LTCOL Collins then ensued which, in the main, addressed Mr Bryan's notes of the meeting, and once again are an extremely detailed series of corrections/rebuttals - they contain, inter alia, deep specialist intelligence-gathering methodology, not directly within the ambit of my TOR and are therefore not included in this Report. I mention their existence, however, to illustrate the overheated atmosphere present at the material time in the intelligence community.
86. During my interview with Mr Blick ... I attempted to ascertain his version of the remarks allegedly made by Mr Lewincamp concerning him targeting LTCOL Collins. Mr Blick said that in his view, it was Mr Lewincamp's way of saying, "Look, I haven't done anything like that and if I had you'd jolly well know about it ... but I haven't".
87. In a similar vein, Mr Lewincamp categorically denied any involvement in causing an investigation of LTCOL Collins ... . He basically corroborated Mr Blick's version of the meeting of 12 September 2001. He said that LTCOL Collins did not take notes during the meeting, although he may have constructed them later or otherwise made marginal notes, but rather, "did all the talking". Mr Lewincamp denied saying words to the effect, "if [sic] target someone they fall down". He said that was not his style of talking. ...
88. Mr Lewincamp went on to say that the "trail of bodies' remark" attributed to him at the 12 September 2001 meeting was, in fact uttered in a fashion by LTCOL Collins himself, who said, "Oh, you've got lots of bodies in your wake." ... Mr Lewincamp added that in the context of the officer's claim that he was out to get him, he replied that he was not out to get LTCOL Collins in any way. However, Mr Lewincamp admitted he may have gone too far by saying, "If I had done that you would have known about it", and further, by saying "I don't have a reputation for missing my targets". Lastly, Mr Lewincamp stated he never sought to have LTCOL Collins removed from any position or to seek to intervene in any way. He added that he would not dream of intervening in the military process.
Paragraphs 130 to 132:
Set out at [52].
Paragraph 134:
Set out at [52].
Paragraph 148:
Set out at [52].
Imputations (f) and (g)
Particulars
The matter complained of as a whole, in particular (without limitation): the front cover, the contents page, pages 30 and 31, page 32 (column 3 - lines 41 to 57), page 33 (column 1 - line 1, lines 19 to 27, lines 32 to 33; column 2 - lines 1 to 11), page 34 (column 1 - lines 36 to 48; column 2 - in its entirety; and photo caption); page 35 (columns 1 and 2 in their entirety; column 3 lines 13 to 19), and page 36 (column 1 - lines 1 to 5; lines 56-64), and the Toohey Report at numbered paragraphs 4, 9, 11-21, 22-26, 42, 49, 50, 51-69, 83-88, 130-132, 134, 135, 148.
The front cover and contents page:
Set out above in this Annexure.
Pages 30 and 31:
Set out above in this Annexure.
Page 32:
Column 3, lines 41-57
Another of Toohey's findings is certain to spark debate. He found, as a matter of fact, that Lewincamp, one of the nation's most senior intelligence bureaucrats, became so frustrated with "the activities" of Collins in East Timor that he caused the flow of intelligence to Australia's soldiers in East Timor during the Interfet operation to be "suspended for approximately 24 hours".
Toohey's report found as fact that Lewincamp was inhibited from reacting in an objective manner to Collins' criticisms of DIO because of his dislike of the intelligence analyst. The report says Lewincamp tried to "muzzle" Collins because he did not like his prediction of the looming violence in East Timor, despite the fact that "Lt Col [continued on page 33, column 1, line 1 ..."]
Page 33:
Column 1, line 1
[Lt Col] Collins' assessments proved accurate.
Column 1, lines 19-27
The Toohey report notes: "I find as a fact that Lt Col Collins, arguably the army's most skilled intelligence analyst, engaged in organisational, albeit constructive and accurate, criticism of Defence and associated intelligence organisations, with particular emphasis on DIO and DFAT but in so doing at times exceeded his remit of restraining his assessments to operational and tactical areas."
Column 1, lines 32-33; Column 2, lines 1-11
The affair surrounding Collins' determined pursuit for justice - and the damning indictment of Australia's security and defence organisations that followed and supports his claims - provides the Australian public with a rare view into the secretive world of military intelligence.
What it reveals is an atmosphere of political intrigue, personal character assassination and growing evidence of an intelligence bureaucracy more intent on serving its political masters than fulfilling its duty to protect the Australian national interest.
Page 34:
Column 1, lines 36-48
Set out above in this Annexure.
Column 2, entirety
Lines 1 to 36 set out above in this Annexure.
Lines 37 to 48 set out below.
Collins and Lewincamp then met in an attempt to resolve their increasingly bitter dispute. Collins became convinced Lewincamp "had the knives out" for him. At their meeting, Collins bluntly put this to him. According to what Collins told the inquiry, Lewincamp, in denying he was setting out to get Collins, said words to the effect: "If I target someone they fall down. You should look at my record." Lewincamp also denied to Toohey any involvement in causing an investigation into Collins.
Caption with photo of Lt-Col Collins.
Set out above in this Annexure.
Page 35:
Columns 1 (in entirety) and 2, lines 1 to 28
[Lewincamp] gave evidence to the investigation that Collins said to him "You've got lots of bodies in your wake" and conceded he may have gone too far when he said: "If I had done that you would have known about it ... I don't have a reputation for missing my targets."
But someone was out to get Collins and they soon struck with devastating effectiveness. While at home on leave soon after returning to Australia in September 2000, he received a call from his wife who had just seen the newspapers. She was alarmed: he had been named on page one of The Sydney Morning Herald. She told him that his name had apparently been included on an Australian Federal Police search warrant investigating leaks of information.
Collins told Toohey he believed the police investigation constituted political use of the AFP "to punish anyone, guilty or not, suspected of embarrassing the government and to further intimidate public servants".
Collins had written to then defence minister John Moore in December 1999 detailing his concerns about Australian intelligence capabilities. Later, when interviewed by Toohey, he listed what he regarded as major intelligence failures. These included the failure to predict coups in Fiji, ...[continues in column 2]
... the failure to predict the Asian financial crisis, along with a failure to predict the Sandline affair in 1997 when the government of Papua New Guinea paid mercenaries to help its army. He also claimed faulty intelligence about Iraq had led to "wrong situational advice to government, leading to bellicose statements which had no public support".
One of the key witnesses to the inquiry said that the way defence intelligence analysis works at present is that "people are waiting to hear what the people above are waiting to know and then they tell them what they want to know". The officer likened the existing situation to "The Emperor's New Clothes".
The Toohey report says: "Lt Col Collins is arguably the army's top intelligence analyst. His loyalty is beyond reproach and his intellect is towering. He does not suffer fools gladly and has a propensity for telling the truth, regardless of government policy.
"The army's treatment of this officer over the last three years has been nothing short of disgraceful. Shades of the recent Dr Kelly scandal in the UK and the Wilkie departure from the Office of National Assessments immediately come to mind. After the recent suicides of Major Jenkins and Private Williams, it seems the ADF has learnt nothing."
Page 35:
Column 3, lines 13-29
In his report, Toohey says Collins' propensity for telling the truth resulted in him being ostracised from the intelligence community, "his peers sniggering behind his back, the virtual destruction of his career, personal problems, a strain on his health (to which he will not readily admit) and a denial of legal assistance at a key meeting at which he attempted (to) air his concerns regarding systemic intelligence failures".
Toohey's extensive report amounts to one of the most comprehensive inquiries into how Australia's military intelligence operates. It concludes:
§ I find as a matter of fact that the director of DIO (Mr Frank Lewincamp) became frustrated with the activities of Lt Col Collins [continued on page 36 column 1] ...
Page 36:
Column 1 - lines 1-5
...during Interfet; that he caused the flow of intelligence to East Timor to be suspended for approximately 24 hours and that, further, he wrote to the Interfet Commander in an attempt to muzzle Lt Col Collins.
Column 1 - lines 56-64
Set out above in this Annexure.
The Toohey Report
(Numbered paragraphs 4, 9, 11-21, 22-26, 42, 49, 50, 51-69, 83-88, 130-132, 134, 135, 148)
Paragraph 4:
Set out above in this Annexure.
Paragraph 9:
9. Summary of Grievances. My remit was to investigate the following grievances submitted by LTCOL Collins:
a. Abuse of Power. Intentional damages to LTCOL Collins' personal reputation and career caused by personal attacks on him by Senior Defence Intelligence officials. Malicious rumours circulated by the above personnel contributed directly to him:
(1) being implicated in a Defence security investigation;
(2) having information and/or malicious misinformation about him released to other agencies in such a manner as it was foreseeable that he would be:
(a) investigated by ASIO and/or the Federal Police, and
(b) named in the media when warrants were served;
(3) subsequent naming on a Federal Police Warrant into Intelligence leaks nor of my even being interviewed or charged;
(4) consequential identification of himself in the high-profile print media as included on the Federal Police warrant.
b. Effect of Malicious Rumours Unchecked by the Army. Malicious rumours both contributed to the inclusion of my name [on] the Federal Police warrant, and flowed from it. The malicious rumours after the SMH article caused a discernible change in attitude to LTCOL Collins by Defence colleagues, resulting in tacit and actual condemnation, workplace isolation and unfair comments on his PR19.
c. Procedural Unfairness and Denial of Natural Justice. As both a cause and consequence of the abuse of power and malicious rumours, there was and continues to be an abrogation of the duty of care owed to LTCOL Collins by the Army to protect his privacy, professional reputation and physical well-being.
Paragraphs 11 to 21:
Set out above in this Annexure.
Paragraphs 22 to 26:
22. LTCOL Collins went on to state that after returning from INTERFET and whilst on recreational leave about the 16th or 17th of September 2000, he received a phone call from CAPT Fernandes, closely followed by a telephone [sic] from his wife, both of whom alerted him to the fact that he was named on the front page of The Sydney Morning Herald newspaper, in an article referring to an Australian Federal Police Search Warrant, which purported to investigate leaks of intelligence information. He states that his wife had read the article on her way to work. My inquiries of a former member of SIP Division, who requested anonymity for the purpose of this report and who successfully sued two media outlets for defamation, have since confirmed that the Search Warrant displaying LTCOL Collins' name was also shown on the ABC' s "7.30 Report" and in the Canberra Times newspaper.
23. The article did, however, make the point [that] LTCOL Collins was not a suspect and makes reference to him being a highly regarded expert on East Timor. Further, the article stated that LTCOL Collins was closely involved in the intelligence estimates describing the Indonesian military's role in coordinating the militia's [sic] in coordinating the militia violence and that he correctly predicted a bloodbath if the East Timorese voted for independence. Of particular relevance to my investigation is that the article went on to describe LTCOL Collins as a very capable operator at the working level who had impressed General Cosgrove with his briefings, although the warnings regarding the role of the Indonesian military were not welcomed by some senior influential senior [sic] civilians in the Defence Department. ...
24. According to LTCOL Collins, the Search Warrant became part of the public domain when a copy was given to Mr Philip Dolling (sic) when the AFP raided the latter's house pursuant to the same Search Warrant referred to above. At the material time, Mr Dolling was an advisor to Mr Laurie Brereton, the shadow Minister for Foreign Affairs and Trade.
25. LTCOL Collins stated that the effect of his being named on the Search Warrant was an amount of "psychological dislocation", notwithstanding his being warned that the "knives were out". He described the exercise as a form of "systematic pursuit". He went on to state that it was his belief that he was the subject of a Defence Security investigation before the AFP involvement. The complainant went on to tell me that he was never informed of the existence of an AFP investigation, nor was he warned that his name may be made public on a Search Warrant (even after the execution of the Warrant). In this context, he asserts that he was denied procedural fairness contrary to Defence Policy contained in the ADFP 202 - Administrative Inquiries Manual. LTCOL Collins further asserted that to date, he has still not been made aware of his status regarding the AFP "Investigation" - a period of about 26 months.
26. The point was made by [sic] to me by LTCOL Collins in the ROG was [sic] that the entire episode (the security investigation and the execution of the Search Warrant) took place in a politically charged environment. He said he believed that AFP investigation constituted political use of the AFP to punish anyone, guilty or not, suspected of embarrassing the Government and to further intimidate public servants.
Paragraph 42:
42 On Monday 26 May 2003, I interviewed CAPT Clinton Fernandes who stated that LTCOL Collins' standing in the Intelligence community suffered not only as a result of being named in the AFP warrant, but also as a result of a constant smear and whispering campaign to which he has been subjected for some time. CAPT Fernandes described the conversation he had had with a fellow Army officer, albeit a total stranger and whom he did not had ever served [sic] with LTCOL Collins, in which the officer referred to Collins as "a character and really anti-Indonesian". CAPT Fernandes went on to say that there is no shortage of people who think LTCOL Collins is an idiot without having ever met the man.
Paragraph 49:
Set out above in this Annexure.
Paragraph 50:
Set out above in this Annexure.
Paragraph 51 to 69:
51. This has been one of the most time consuming areas of my investigation. It is an immutable fact that the complainant, among 10 other individuals, was named on a Search Warrant sworn by the Australian Federal Police on 12 September 2001. How did it come to be there? The names of the individuals on the Warrant were publicised in the national media. In light of the fact that his residence or office was never searched, nor was he personally interviewed, why has he never been informed as to the status of the security investigation and closure achieved?
52. Mr Frank Lewincamp, the Director of DIO, when interviewed, offered the view that LTCOL Collins' access to the full range of leaked material, combined with his linkages with other suspect individuals involved in the investigation would have initially rendered him a suspect. The Director suggested I continue my inquiries with Ms Margot McCarthy, Head of the Defence Security Authority. I did not find Mr Lewincamp a credible witness because of his strong dislike for LTCOL Collins.
53. Ms McCarthy, who at all times was an extremely helpful and most credible witness, said that she was not the Director at the material time, but on my request, had reviewed over 100 documents prepared by two external consultants engaged by the Department of Defence. She went on to say that the investigation into the leakage was a joint Defence/AFP operation but LTCOL Collins' name did not appear in the investigation report. She added that the report and the warrant were, and remain the property of the Australian Federal Police. Ms McCarthy, on being questioned further, confirmed that the title of the final investigation report was "Operation Arbite", however I saw no requirement to press the matter further, noting that the contents of the report are highly sensitive and would possibly raise the security classification of my report to an unnecessarily high security level, not commensurate with the "need to know" doctrine.
54. Ms McCarthy stated that at the material time, there were a loose-knit group of military intelligence officers who disagreed with DIO's assessments regarding East Timor and who gave each other mutual intellectual support. Ms McCarthy agreed with my hypothesis that LTCOL Collins' name could have been supplied with a "grab bag" of "suspects" to the AFP, who then used their own discrete methodology to determine individual names for the search warrant. She agreed with my proposition that for obvious tactical reasons, a person named on a warrant would not be notified BEFORE ([Capt Toohey's] emphasis) a warrant was executed.
55. Turning to the issue of LTCOL Collins' naming in the search warrant, Ms McCarthy made the point that neither Defence, Army nor the AFP were under any obligation to inform LTCOL Collins of that fact unless he was to be the subject of an interview. She could not point to any extant policy or procedure requiring "suspects" to be informed, even post-investigation. In summary, Ms McCarthy said that she did not see the responsibility resting with the Defence Security Branch to inform LTCOL Collins of his status vis-à-vis his name appearing on the search warrant and unfortunately being the subject of national media interest. She did, however generously offer to write to LTCOL Collins and explain, as far as she was able, the circumstances of the investigation. I took this offer on notice. ...
56. When asked to speculate as to the reason LTCOL Collins' name appeared on the search warrant, the Chief of the Defence Force said he could recall the warrant in question, but only in the context of an investigation being carried out on CAPT Fernandes. GEN Cosgrove added that he was surprised to see the final form of the warrant in the media. ...
57. In my interview with former DDSEC-Army, COL D Gillian, the officer confirmed that investigation in question was run by the AFP, with some Defence Security officers on secondment. He said that he was headquartered in Sydney, but was kept informed on significant phases of the investigation, such as when the search warrant was to be served on CAPT Fernandes, in order to remove the latter's security clearance and to obtain the necessary approval from the DEPUTY Chief of Army. GOL Gillian was emphatic that LTCOL Collins' [sic] was never mentioned as having his security clearance removed or as being under suspicion.
58. COL Gillian described LTCOL Collins as being very prescient in his assessments, a very capable operator, but with a major weakness: his passion for certain issues and incidents not displayed by other people in the (intelligence) community. He drew attention to vitriolic attacks made on DIO by LTCOL Collins - his point being that it would have been "easy" for DIO or other entities disenchanted with the officer's frank assessments to have made baseless allegations against him. ...
59. Returning to my interview with CAPT Fernandes, the officer said he failed to see how LTCOL Collins' name could have appeared on the search warrant. He confirmed [the] fact that he had telephoned LTCOL Collins on the day of the media report. The latter told CAPT Fernandes that he had also been telephoned by his wife earlier in the day with similar news. CAPT Fernandes went on to state that LTCOL Collins, whilst remaining calm kept asking, "What's it got to do with me?" ...
60. CAPT Fernandes confirmed LTCOL Collins' propensity to originate e-mails to a wide audience on the classified network, contradicting DIO's assessments on Indonesia, and in particular the alleged terrorist activities of the so-called "rogue elements" of the TNI, as opposed to DIO's description of those elements as mere factions. CAPT Fernandes' inference being that LTCOL Collins' mode of intelligence reporting would have won him few friends in the higher policy-making intelligence echelons and therefore cause certain adverse action to be taken against him.
61. In two conversations held with a former Assistant Secretary of Defence Security, Mr J Browne, I was told emphatically that the officer was never under suspicion or investigation during the former's stewardship. Mr Browne agreed with a hypothetical scenario that LTCOL Collins' name would have been included in a "grab bag" of names supplied by Defence to the AFP in the context of an investigation into security leaks. He added that the officer's name would have been handed over because of his very close association with other personnel who were under [sic] suspicion. Mr Browne stressed that at all times the AFP "had the call" as to who appeared on the warrant and that he had no influence on the conduct of the investigation. ...
62. When I continued my conversation with COL M Norris ..., the officer said he regarded LTCOL Collins' close (professional) association with CAPT Fernandes as not being in the interests of INTERFET and as a result had stopped CAPT Fernandes' deployment. He said this was done solely for LTCOL Collins' protection. COL Norris said that during INTERFET he had heard anecdotally that LTCOL Collins had been warned "stay on his own ground", however, this was balanced by the view that LTCOL Collins was merely responding to requests from his Commander. He added that he was aware of LTCOL Collins' views regarding the provision of a substandard intelligence to INTERFET.
63. The conversation then turned to the naming of LTCOL Collins on the search warrant, whereupon COL Norris surmised that the officer would never have been intended as the subject of a search, but he fully expected that CAPT Fernandes would have been the subject of an investigation and search. COL Norris described the complainant as being totally professional who would do NOTHING (Col Norris' emphasis) to compromise Australia's security. In a similar vein to other officers interviewed, he described LTCOL Collins as being totally professional and a straight shooter. Perhaps more importantly, he added that, LTCOL Collins should have been told about his name being on the search warrant as soon as its existence became public knowledge, but he offered no opinion as to whose responsibility that should have been. ...
64. During my overseas telephone conversation with Mr F Windsor [sic] ..., I asked for his views on why LTCOL Collins was named on the search warrant. [Mr Winsor] stated that although relations between the officer and the Director of DIO were less than friendly, he was emphatic that DDIO would not have influenced that aspect and indeed, DIO had been himself been interviewed [sic] in the wider investigation.
65. In seeking to better ascertain the methodology underpinning the placing of names on AFP warrants I examined evidence given to the Senate Legal and Constitutional Committee by Acting Commissioner Keelty on 22 November 22 November [sic] 2000, in the context of the warrant in question being executed on the residence of Mr Philip Dorling, Advisor to The Hon Laurie Brereton, Opposition Spokesman on Foreign Affairs and Trade.
66. Although the thrust of the questioning was in the context of a possible breach of Parliamentary privilege, Commissioner Keelty told the Committee that the warrant had been authorised by the Deputy Chief Magistrate of the ACT Magistrates Court, on request of an AFP officer, who must first establish in his mind that offence [sic] has been committed. As an aside, and without wishing to be pedantic, the ACT Magistrates Court does not have a position of Deputy Chief Magistrate. That said, I established that the search warrant was issued on 12 September 2000 by Magistrate P Dingwall although no records could be found of a duplicate copy, which is invariably kept on the Court premises. ...
67. A/Commissioner Keelty stated in evidence that a group exists at AFP Headquarters formed to investigate "special references". I took this to mean, inter alia, requests for security investigation referred by the Department of Defence. ...
68. In attempting to bring the somewhat protracted investigation of the publication of LTCOL Collins' name in the media to an end, I made contact (after several unsuccessful attempts) with the informant on the warrant, Special Agent Jaroslaw Stephen Jakiwczyk of the AFP. The object of this exercise was to organise a three-way meeting between myself, Ms Margot McCarthy and Special Agent Jakiwczyk. Ms McCarthy was, as always, cooperative with my investigation, however, Special Agent Jakiwczyk referred me to Special Agent Chris McDevitt, Coordinator of the group tasked with investigating "special references", as referred to by A/Commissioner Keelty, above. ...
69. Special Agent McDevitt, in a telephone conversation followed by a self-explanatory e-mail ... explained that the (recently amended) Crimes Act (Cth) 1914 under which the search warrant was processed, now requires investigating police to hand a copy of the relevant search to the occupier/s of the premises being searched. Therefore, the AFP, although sympathetic to the privacy of other individuals named on the warrant, have no control over release of the contents of the warrant to the media or indeed to the public at large.
Paragraphs 83 to 88:
Set out above in this Annexure.
Paragraphs 130 to 132:
Set out at [52].
Paragraph 134:
Set out at [52].
Paragraph 135:
Set out at [52].
Paragraph 148:
Set out at [52].
Imputation (a)
The matter complained of as a whole, in particular (without limitation): the front cover, the heading and pre-amble to the article on page 22, and page 23 (column 1 - lines 35 to 43).
The front cover:
John Lyons on the Lance Collins Affair
Page 22:
Heading and pre-amble to the article
JUSTICE UNDER FIRE
The Collins Affair I
John Lyons
In the wake of The Bulletin's damning exposé of Australia's intelligence services and the attempted character assassination of Lieutenant Colonel Lance Collins, come further explosive charges against the military and its political masters.
Page 23:
Column 1, lines 35 to 43
The Toohey report made another devastating finding which neither the PM nor the chief of the DIO, Frank Lewincamp, have addressed: that because of his battle with Collins, Lewincamp "caused the flow of intelligence to East Timor to be suspended for approximately 24 hours". Until Howard reveals why Australian soldiers were endangered in this way, the issue will not go away.
REASONS FOR RULING
INTRODUCTION
1. During the trial, the plaintiff applied to tender a number of documents. I made rulings with respect to the admissibility of three documents and I said that I would deliver reasons as part of my reasons for judgment. I rejected the tender of a letter from Lt-Col Lance Collins to Air Chief Marshal AG Houston on 21 July 2005 (MFI-P18) and a letter from Lt-Col Lance Collins to an unknown addressee dated 8 May 2005 (MFI-P19) and I received into evidence a letter from Gates Lawyers to Ms Storen dated 21 April 2004 (MFI-P22). My reasons for my rulings follow. I will deal first with my reasons for receiving in evidence MFI P22.
ADMISSIBILITY OF MFI-P22
2. In my opinion, MFI-P22 was relevant and admissible.
3. MFI-P22 was a letter from Mr John Gates of Gates Lawyers to Ms Storen, Manager, Security Investigations Unit, Defence Security Authority ("the DSA-SIU") dated 21 April 2004. I will refer to it as the "Gates letter". Mr Gates was acting for Capt Toohey. It appears from the document, and other evidence before me on the voir dire (to which it will be necessary later to refer), that the DSA-SIU was appointed to investigate certain unauthorised disclosures of the Toohey report and in particular the suggestion that Capt Toohey might have disclosed his report. In the Gates letter, Mr Gates sought confirmation that no additional information or clarification was sought from Capt Toohey with respect to the issue of how unauthorised persons may have obtained a copy of his report. It also reiterated the position taken by Capt Toohey that he did not himself disclose his report.
4. It is necessary to set out the passage in the Gates letter that the plaintiff submits is relevant in this proceeding:
I can also tell you that Mr Lyons will confirm that my client did not provide him with a copy of the report and that they had never met prior to the meting [sic] on 11th April which my client reported to Defence on 12th April.Indeed, Mr. Lyons will tell you that he discussed the report in detail with his managing editor and lawyers approximately two weeks prior to 11th April 2004.
5. Principally, the second of these paragraphs is submitted to be relevant, but it will be necessary later to refer to Mr Gates' language in the first paragraph.
6. Although the defendant did not object on the grounds of relevance, it is appropriate briefly to state the relevance of the Gates letter. The extract set out above was relevant to proving the fact that the defendant had the Toohey report at least two weeks prior to 11 April 2004. I was prepared to accept that this fact was material at least to the issue of qualified privilege insofar as the reasonableness of the defendant's conduct was an issue. That is, the fact, if established, may found an inference that the defendant had sufficient opportunity to make enquiries or invite comment from the plaintiff but, as other evidence established, did not, in fact, do so. I might simply note at this point that even if it were the case that the defendant obtained the report much later in April, reasonableness may have required the defendant to make enquiries and delay the first publication. In any event, the Gates letter was relevant and prima face admissible: s 56(1) Evidence Act 1995 (Cth).
7. The defendant's objection to the tender was based on the hearsay rule. The evidence was obviously hearsay evidence and the plaintiff, who sought to tender it, was required to establish that it fell within an exception to the rule.
8. The plaintiff submitted that the document came within the exception to the hearsay rule involving business records: s 69 Evidence Act 1995 (Cth). The plaintiff submitted that s 69 applied to the Gates letter in two alternative ways. The first way was in relation to the representation made by Mr Gates that Mr Lyons discussed the Toohey report with his managing editor and lawyers approximately two weeks prior to 11 April 2004 ("the Gates representation"). The second way was in relation to an alleged representation by Mr Lyons to Mr Gates that he discussed the Toohey Report with his managing editor and lawyers approximately two weeks prior to 11 April 2004 ("the Lyons representation"), which representation was recorded (not made: see s 6, Part 2 of the Dictionary) in the Gates letter.
9. The questions which fell to be answered were these:
(a) Did the document satisfy s 69(1)(a)?
(b) Did the Gates representation satisfy ss 69(1)(b) and 69(2)?
(c) Did the Lyons representation satisfy s 69(1)(b) and 69(2)?
(d) Did the relevant representation fall within the terms of s 69(3)?
Questions (a) and (b) or, alternatively, questions (a) and (c) had to be answered affirmatively, and question (d) answered negatively, if the exception involving business records was to apply.
(a) Did the document satisfy section 69(1)(a)?
10. The definition of "document" is wide and inclusive and plainly encompasses the Gates letter. The defendant raised, but did not develop, a submission that the Gates letter, though a document, was not a business record. Neither party called any evidence on this point. In the circumstances, I was required to draw an inference as to the status of the document from the document itself. In the absence of evidence to the contrary, it seemed clear to me that the letter formed part of, or at some time did form a part of, the records kept by Gates Lawyers in the course of their business and therefore came within the terms of s 69(1)(a).
(b) Did the Gates representation satisfy sections 69(1)(b) and 69(2)?
11. It was not contested that the Gates representation was a previous representation (within the meaning of the Evidence Act 1995 (Cth)) made in the Gates letter, in the course of the business. Therefore, subs (1)(b) was satisfied.
12. The more difficult issue was whether the Gates representation could be brought within the terms of sub-s (2), which provides:
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
13. The asserted fact in this case was that Mr Lyons had the Toohey report approximately two weeks prior to 11 April 2004. The Gates representation was one made by Mr Gates. Clearly, Mr Gates could not have had personal knowledge of the represented fact, so the plaintiff must bring the Gates representation within paragraph (b).
14. There was no evidence before me as to how Mr Gates came to believe that Mr Lyons would tell Ms Storen (as asserted in the Gates letter) that he discussed the report in detail with his managing editor and lawyers approximately two weeks prior to 11 April 2004. The plaintiff invited me to infer from the Gates letter itself that Mr Gates arrived at this understanding on the basis of information supplied by Mr Lyons, who, it cannot be doubted, had personal knowledge of the represented fact. That inference was clearly not the only one open to me. The defendant submitted that there were four possible ways that Mr Gates had come to this understanding. First, Mr Gates might have made it up. Counsel for the defendant properly conceded that this inference was not open on the evidence and should not be drawn. Secondly, Capt Toohey might have instructed Mr Gates that Mr Lyons would confirm the represented fact on the basis of communications between Capt Toohey and Mr Lyons. Counsel for the defendant submitted that this was the most probable explanation. Thirdly, Mr Lyons himself might have informed Mr Gates. Counsel for the defendant conceded that this would bring the Gates representation within s 69(2)(b) and that this inference was open on the evidence, but he submitted it could not be established on the balance of probabilities having regard to the second possibility. Fourthly, an unidentified person (such as a colleague or subordinate of Mr Lyons) might have passed the information on to Mr Gates. I express no view on whether these possibilities were exhaustive; probably, they were not.
15. It was unnecessary for me to make a finding as to how Mr Gates arrived at the understanding expressed in the Gates representation. It suffices to say that I am satisfied that the Gates representation was made on the basis of information supplied at least indirectly by Mr Lyons. Indeed, even adopting the defendant's second possibility - that Capt Toohey told Mr Gates, by way of giving instructions, what Mr Lyons would say - which was submitted by the defendant to be the most likely of the possibilities, then the information has been supplied by Mr Lyons, albeit indirectly via Captain Toohey. That said, I am inclined to agree with the plaintiff's submission that the language of the letter does not readily invite the conclusion that Mr Gates was conveying his instructions. Rather, the absence of reference to instructions and the use of the personal voice seem more likely to convey that the information was supplied directly by Mr Lyons to Mr Gates. Either way, subs 69(2)(b) was satisfied.
(c) Did the Lyons Representation satisfy sections 69(1)(b) and 69(2)?
16. It was strictly unnecessary to decide whether the Lyons representation satisfied either subss (1)(b) or (2). This is because I concluded that the Gates representation satisfied those sub-sections and (as will become apparent in the next section of these reasons) the Gates representation did not fall within subs (3). I will refrain from expressing any concluded view on the matter since it appears to me that important questions of interpretation arise in relation to representations "recorded" in documents and the application in such cases of subs (2), which turns on the knowledge of the person who "made" the representation. In particular, the plaintiff submitted that the Lyons representation was "recorded in the document", bringing the Gates letter within subs (1), and that the Lyons representation, being "made by" Mr Lyons, was "made by a person who had ... personal knowledge of the asserted fact" within subs (2). That submission, if accepted, gives a very wide operation to the exception involving business records. The correctness of such a submission should be decided only after full and detailed argument in a case the facts of which render it necessary to do so. Since the argument was not developed in the present case and since it is not necessary to resolve the issue, I express no concluded view.
(d) Did the relevant representation fall within the terms of section 69(3)?
17. Subsection (3) operates as an exception to subs (2) and provides:
(3) Subsection (2) does not apply if the representation:(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
The subsection refers to the representation itself, rather than the document containing the representation. The defendant's submissions with respect to subs 69(3) related to the Gates representation only. Since I concluded that the Gates representation was not excluded by subs (3), it was unnecessary to consider whether or not the Lyons representation would be excluded by the subsection.
18. The phrase "Australian or overseas proceeding" is defined in the Dictionary and means "a proceeding (however described) in an Australian court or a foreign court". Although a range of kinds of proceeding is encompassed, it is clear that they must be proceedings before a court. Plainly, the investigation being conducted by DSA-SIU into the unauthorised disclosure of the Toohey report was not itself an Australian or overseas proceeding.
19. The defendant made two principal submissions. First, it submitted that Mr Gates contemplated proceedings, such as to enliven subs (3)(a). Secondly, it submitted that the DSA-SIU investigation was related or was leading to a criminal proceeding, such as to enliven subs (3)(b). The defendant tendered two documents on the voir dire in support of these submissions. The first document was a Briefing for Chief of Defence Force from DSA ("Exhibit A"). The second was letter from the Acting Head of DSA to Mr Gates in response to the Gates letter ("Exhibit B").
20. In relation to Exhibit B, the following passage was relied upon:
Thank you for your letter to Ms Storen of 21 April 2004 in which you provide additional detail on behalf of CAPT Toohey to assist the Department of Defence in its investigation into the unauthorised disclosure of CAPT Toohey's report into the Redress of Grievance of LTCOL Collins.
21. I accept that this letter confirms the existence of an investigation into the disclosure of the Toohey report, but that investigation was not a proceeding, and the letter does not otherwise shed any light on the issue of whether proceedings were contemplated, or whether the investigation was related to a criminal proceeding. For those reasons, Exhibit B did not assist me in determining the admissibility of the Gates letter.
22. Exhibit A is a briefing to the Chief of Defence Force, the purpose of which is:
To advise on the options available to Defence relating to the security investigation undertaken by the Defence Security Authority - Security Investigation Unit (DSA-SIU) involving the alleged disclosure to The Bulletin Magazine by Captain (CAPT) Martin Toohey (Royal Australian Naval Reserve).
The briefing provides background information on the defendant's publications and publication of the Toohey report and the appointment of DSA-SIU to investigate the disclosure. The briefing then sets out the options potentially available to Defence. These include criminal action, Defence Force Discipline Act 1982 (Cth) action, administrative action, common law action and no action. It was submitted that Exhibit A showed that proceedings were contemplated.
23. Two things can be said about that submission. First, Exhibit A does not show that proceedings were `contemplated' within the meaning of subs (3). In ACCC v Advanced Medical Institute Pty Ltd (No 2) [2005] FCA 1357; (2005) 147 FCR 235, Lindgren J considered the meaning of the phrase "in contemplation of". After reviewing the authorities, Lindgren J concluded (at 241 [43]):
The question to be asked is whether the person who "prepared" or "obtained" the representation contained in the document, prepared or obtained it having in mind that legal proceedings were likely or reasonably probable, not merely one possibility.
24. I respectfully agree. It is not enough for the defendant to show that proceedings were possible; it must show that they were reasonably probable or likely. No proceeding was identified as probable or likely and, in fact, Exhibit A presented the various proceedings as possibilities alongside the possibility of "No action". I was not satisfied that Gates made the representation in the Gates letter in contemplation of an Australian or overseas proceeding.
25. The second thing that can be said about the defendant's submissions as to Exhibit A is this. Since subs (3)(a) requires that regard be had to the contemplation of the person who prepared or obtained the representation (ACCC v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR at 238 [23] per Lindgren J), in this case Mr Gates, it is necessary for the defendant to show that proceedings were contemplated at the time the representation was prepared or obtained. Even if, contrary to my reasons above, Exhibit A did show the contemplation of proceedings, it cannot show such contemplation at the relevant time. Although the briefing is undated, it refers to the contents of the defendant's magazine dated 4 May 2004. Even allowing for the fact that editions of the defendant's magazine appear six or seven days prior to the date on the issue, the earliest possible date for the preparation of the briefing was 27 April 2004. The Gates representation was prepared no later than 21 April 2004. For that reason, Exhibit A could be of little, if any, assistance in deciding this issue.
26. I should mention briefly that in the Gates letter itself, Mr Gates writes:
My client is concerned that his name continues to be referred to in media reports and that his professional and personal reputation is now being damaged. Accordingly, it may be necessary for him to take some steps in order to protect his reputation ...
27. Although this raised the possibility of a proceeding (say, for defamation) that proceeding cannot be said to have been thought likely or reasonably probable.
28. For these reasons, I was not satisfied that subs (3)(a) applied so as to render subs (2) inapplicable.
29. In relation to the submission that subs (3)(b) applied, I am prepared to accept that the representation was made in connection with the investigation by DSA-SIU. The important issue is whether that investigation is one "relating or leading to a criminal proceeding", as the terms of subs (3)(b) require. Where, as in this case, no criminal proceeding ever eventuates, it makes little sense to describe an investigation as relating or leading to a criminal proceeding. That said, having regard to the purpose of the section, it may be unduly restrictive to require there to have been an actual criminal proceeding. The purpose of this exception to the business records exception is to exclude representations made in business records which might have a self-serving motivation such as to undermine their reliability. One can imagine circumstances where such a self-serving motivation exists in connection with an investigation, though the investigation never in fact leads to a criminal proceeding. But if an investigation does not in fact relate or lead to a criminal proceeding, it must be of a type such as to relate or lead, in the ordinary course of events, to a criminal proceeding. Police investigations would fall within this, but the investigation in the present case did not.
30. It is not sufficient to show of an investigation that a criminal proceeding was one possible outcome. In Nye v State of New South Wales [2002] NSWSC 1268; (2002) 134 A Crim R 245 the court had to consider the admissibility of certain representations made by a witness at a Royal Commission. The court held that the investigation by the Royal Commission was not relating or leading to a criminal investigation, since the Royal Commission could only recommend that consideration be given to criminal proceedings (at [18]). Similarly, in the present case, it is apparent that DSA-SIU could only recommend that consideration be given to criminal proceedings, the final decision to institute proceedings resting with Defence (as Exhibit A tended to suggest). Thus, the investigation could not itself lead to a criminal proceeding.
31. For these reasons, I was not satisfied that subs (3)(b) applied so as to render subs (2) inapplicable.
32. Returning to the four questions which I identified at the commencement of my reasons on the exception involving business records, questions (a) and (b) have been answered affirmatively and question (d) has been answered negatively. It was unnecessary to answer question (c). Therefore, the exception involving business records applies to the Gates letter.
General discretion to exclude evidence
33. Finally, the defendant asked me to exercise the court's general discretion in s 135 of the Evidence Act 1995 to refuse to admit evidence. That section is in the following terms:
135 General discretion to exclude evidenceThe court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
34. There is a heavy onus on the party asking the court to exercise the discretion since the probative value must be substantially outweighed by one or more of the listed dangers. The discretion will be exercised only in a clear case. I was not satisfied that any of the dangers listed in s 135 arose in the present case.
35. Evidence is not to be considered `unfairly prejudicial' by virtue only of the fact that it tends to undermine one party's case (See Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 325 [91] per McHugh J). The relevant prejudice is the risk that the trier of fact will misuse the evidence in an unfair way. I did not understand the defendant to submit that there was a risk that I, as judge alone, would misuse the evidence. Nor did the defendant point to any procedural disadvantage, which admission of the evidence would occasion (see the issue left unresolved in Ainsworth v Burden [2005] NSWCA 174 at [105]).
36. The second danger - that the evidence might be misleading or confusing - will usually arise only in a jury trial. The present case was not one of a kind where it is appropriate for me, as judge alone, to exclude the evidence on that basis. The fact that it is hearsay evidence, when it comes within one of the statutory exceptions to the hearsay rule, was not a proper basis on which to decide that it was apt to mislead or confuse, as the defendant submitted.
37. The third danger - that the evidence might cause or result in undue waste of time - was not the subject of any developed submission by the defendant, though it was initially pressed. I saw no reason why admission of the Gates letter would cause any waste of time.
38. I was not satisfied that the probative value of the Gates letter was substantially outweighed by any one or more of the dangers listed in s 135. I declined to exercise my discretion to refuse to admit the evidence.
Conclusion on admissibility of MFI-P22
39. It was for these reasons that I concluded that the Gates letter was relevant and came within an exception to the hearsay rule. Therefore, it was admissible and there was no reason to refuse to admit it.
ADMISSIBILITY OF MFI-P19 AND MFI-P18
40. In my opinion, the plaintiff failed to show that MFI-P18 and MFI-P19 were relevant in the proceeding and in those circumstances they were not admissible.
41. The plaintiff submitted that MFI-P18 and MFI-P19 were evidence of the fact that Lt-Col Collins was prepared to make "outlandish" and "wild" assertions. It was not suggested that the assertions were made to the defendant or that the defendant otherwise became aware that they had been made. Furthermore, the assertions were made in documents prepared well after the first and second publications were published. It was submitted that Capt Toohey and the defendant made findings or stated facts which went beyond Lt-Col Collins' assertions to them. There was no direct evidence of the assertions Lt-Col Collins made to the defendant; at least some of the assertions Lt-Col Collins made to Capt Toohey were known by reason of his redress of grievance and the transcript of interview between Lt-Col Collins and Capt Toohey. As I understood the plaintiff's submission it was that MFI-P18 and MFI-P19 should lead me to find that Lt-Col Collins was a man prepared to make outlandish and wild assertions, and the fact (so it was said) that Capt Toohey and the defendant went beyond his assertions made their conduct all the more open to criticism.
42. Section 55 of the Evidence Act 1995 (Cth) provides, relevantly:
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
43. I could not see how MFI-P18 and MFI-P19, which it had not been shown were known to the defendant at any relevant time, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact relevant to the conduct of either Capt Toohey or the defendant. Neither MFI-P18 nor MFI-P19 were relevant and therefore both were inadmissible.
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