F.D.N.

IN THE SUPREME COURT OF SOUTH AUSTRALIA

NO. 81/1998

BETWEEN:

THOMAS LINCOLN CHAPMAN AND OTHERS

Plaintiffs

and

CONSERVATION COUNCIL OF SOUTH AUSTRALIA INCORPORATED AND OTHERS

Defendants

DEFENDANTS’ OUTLINE OF CASE

  1. INTRODUCTION

    1. The Defendants approach this litigation on the basis of there being effectively 10 separate causes of action. Note that publications 8 and 10 as pleaded are the same publication on different occasions.

      2. Hereafter publication 10 is disregarded and publication 11 is referred to as publication 10.

    2. The Plaintiffs initially commenced with some 18 separate causes of action. Five were subsequently struck out. Two were thereafter abandoned.

    3. The CCSA is the peak body of the environment movement in the State, representing over 60,000 South Australians. Its role is to represent its members’ concerns by participating in public debate and campaigning and lobbying in relation to matters involving the environment, conservation, planning and development.

    4. The CCSA believes that robust public debate, even where the language is overly colourful, is an important part of a democratic society. Public interest is not served by having the content or boundaries of political debate decided by a Court, or by having that debate take place in the shadow of litigation. This is a recurring theme of the literature on SLAPP suits in the United States and is increasingly of concern in Australia.

    5. The CCSA believes that it has raised environmental issues of importance in relation to the Hindmarsh Island Bridge, and that in doing so, it has striven to focus on the role and responsibility of the government. The CCSA asserts that it has acted in good faith and in the public interest.

  2. THE ISSUES

    1. The Defendants hereunder state their position on the essential issues.

    2. There is a common theme in many of the publications. Identification is an issue in respect of all plaintiffs in respect of publications 1, 3, 4, 8 and 9.

    3. The issue of defamatory meaning is addressed both generally and in respect of each publication hereunder.

    4. The issues associated with the defences of qualified privilege and the Lange defence are largely common to all 10 publications. They are addressed together, as is actual malice, the particulars of which are the same for all publications.

    5. The defences of alternative meaning (Polly Peck) and fair comment are addressed separately in respect of individual publications.

  3. IDENTIFICATION

    1. The general test is whether ordinary, reasonable people understand the matter complained of and the imputations thereby conveyed to be directed at the plaintiff. Where special knowledge of extrinsic facts is necessary to identify the plaintiff the identification is said to be by way of innuendo. Refer generally to Gillooly, The Law of Defamation in Australia and New Zealand, 1998 at pp. 59, 63. See also Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348 particularly at
      362-366 and 371-375. Here, by paragraph 8 of the Statement of Claim, the Plaintiffs assert a true innuendo in respect of "the public or a substantial section of the public". In other words the Plaintiffs do not rely upon a true innuendo held by a discrete group with special knowledge. The Defendants reject the factual basis of the alleged innuendo and will assert that the general test of identification is not made out.

    2. The Court has an agreed bundle of documents. On the documents the Defendants assert that the identification of the Chapmans as bridge developers is not established.

    3. The Defendants note the "Plaintiffs’ contentions from decided cases" which have been provided to the Court. The Defendants were not parties to the two decided cases referred to by the Plaintiffs. No issue estoppel arises. This Court must decide the issue on the evidence adduced in these proceedings.

    4. Because the Plaintiffs have not admitted the admissibility of all "relevant" documents on this issue in the book of documents the Defendants do not particularize their submissions on this issue in this outline.

    5. It is the Defendants’ submission that, by the middle of 1993, and certainly by the date of the first publication in February 1994, the public knew from a raft of media reports that the Government was responsible for the building of the bridge. The notion that, because the Chapmans and/or Binalong had secured the original planning approval for the bridge, they were defamed by criticisms of the bridge, is perhaps less tenuous with respect to issues of consultation during the planning process (Publication 10). However, the connection is far too remote from more general criticisms of the bridge (Publications 3, 4, 9), and certainly to the funding of the bridge (Publications 1, 2).

    6. It will be the Defendants’ submission that of the many documents published between the date of the first publication (February 1994) and the date of the tenth publication (September 1995), the most common identification throughout the period is of the Chapmans as marina developers. Such identification often makes clear that they are not building the bridge.

    7. The Plaintiffs cannot rely upon publications after the dates of the complained-of publications to aid in establishing the special knowledge it asserts that the public or a substantial portion thereof had: Baltinos v Foreign Language Publications (1986) 6 NSWLR 85 at 97-8.

    8. It will be the Defendants’ submission that there is virtually no documentation identifying Andrew Chapman as having anything to do with the bridge.

  4. DEFAMATORY MEANING

    1. The classic test is that a statement is defamatory of a person of whom it is published if it tends to lower him in the estimation of right thinking members of society generally: Capital & Countries Bank v George Henty (1882) 7 App.Cas. 741 at 772; Sim v Stretch [1936] 2 All ER 1237 at 1240; Readers Digest v Lamb (1982) 150 CLR 500 at 505-6.

    2. Where right thinking members of society generally are split on their views as to a particular state of being or activity then it will be difficult to bring an allegation that someone is of that state or engages in that activity within the test. "The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes": Readers Digest v Lamb (1982) 150 CLR 500 at 507 per Brennan J. And see Gatley, 9th edit., Para. 2.10 and in particular the reference to Tolley v Fry [1930] 1KB 467 at 479.

    3. Thus it could not be defamatory to assert that someone is an environmental activist, as such a substantial section of the community supports such activity. Similarly it is no longer defamatory to say of someone that he is a homosexual: Rivkin v Amalgamated Television Services, Sup. Ct. NSW, Bell J., 28.5.01.

      4. Again, it is not defamatory to say of someone that they embrace capitalism totally to the exclusion of government interference. Nor then can it be defamatory to say of someone that they espouse the exploitation of natural resources by development of same notwithstanding that that necessarily means damage to the environment.

    4. The Court may be assisted by the analysis of the Court of Appeal in Berkoff v Burchill [1992] 4 AllER 1008.

  5. QUALIFIED PRIVILEGE AND THE LANGE DEFENCE

    1. It is convenient to deal with these two Defences together.

    2. There can be no serious question as to the fact that the publications are broadly in respect of political or governmental issues and all pertain to matters of significant public interest concerning which the defendants have a significant interest in expressing their views. In some instances, which are referred to hereunder, individual publications are limited to persons having a narrower and clear interest in receiving the communication.

    3. In order to succeed under the Lange Defence (Lange v ABC (1997) 187 CLR 521), the Defendants accept the onus of establishing that their publications were reasonable. It is suggested that the publications were not reasonable because the Plaintiffs were not given the opportunity of responding. It will not always be necessary for the opportunity of a response to be given: Lange, 574. The Defendants say that that is particularly the case when, as here, the Plaintiffs (and supporters of the bridge) had and were taking liberal access to the media to expound their own views to the public. In the print media, prior to the first publication, the Plaintiffs are reported as putting their side of the story on numerous occasions. Between the first and the tenth publications there are numerous further occasions of the Plaintiffs taking access to the media to put across their views. Again, all of the electronic media is not included.

    4. The Defendants say that there was no need to afford to the Plaintiffs right of reply.

    5. The Defendants will rely upon all of the surrounding circumstances including their public role, the public debate, the events surrounding that debate and the actions of the Plaintiffs in establishing the reasonableness of their conduct. It will be urged upon the Court that in considering this issue the Court should not approach the matter in any narrow or nice way. The implied constitutional freedom requires that substantial latitude be afforded to an entity such as the Conservation Council in putting forward its views.

  6. ACTUAL MALICE

    1. The concept of actual malice as applied to the traditional qualified privilege has no application to the extended Lange defence: Lange, 574; The Law Book Company Limited, The Laws of Australia, Vol. 6 at Part 6.1, Chapter Six, para. [87]. The principles of Horrocks v Lowe [1975] AC 135 have no part to play in the extended defence.

    2. The Plaintiffs assert as a particular of actual malice that the Defendants did not afford to the Plaintiffs the opportunity to respond. As indicated in paragraph 4 above, the Defendants say that the Plaintiffs were having liberal access to the media over the relevant period.

    3. The Plaintiffs point to what they assert to be an improper motive on the part of the Defendants namely to defeat the Plaintiffs’ objective of having the bridge built. Making publications with the intention of defeating one’s political opponents can, however, never constitute an improper purpose:

      4. Braddock v Bevans (1948) 1 QB 580 at 593

      Lange v ABC (1997) 187 CLR 521 at 574

      Roberts and Case v Bass [2000] SASC 297, paras 44, 95.

    4. The Plaintiffs point to a failure by the Defendants to apologise. Failure to apologise does not constitute evidence of malice, at least not in these circumstances.

    5. Actual malice in the context of the public debate of the nature surrounding the Hindmarsh Island Bridge will be notoriously difficult to establish. That proposition has been clearly recognised by the South Australian Full Supreme Court (Hudson v Mayes: (1993) 173 LSJS 200 at 204). The Defendants commend the approach taken by the US Supreme Court to the effect that actual malice must be established with "convincing clarity": New York Times v Sullivan 376 US 254, 285-6 (1964). Similarly, in Garrison v Louisiana 379 US 64 at 74 the US Supreme Court held that only false statements made with a high degree of awareness of their possible falsity are sufficient.

  7. PUBLICATION 1 (22/02/94) "EXPLOITATION" AND "DISHONOURABLE DEAL"

    1. Essentially, this Media Release is a criticism of the Government. It should be read as such. Parallels can be drawn with the decision of the Full Court in Chapman v ABC [2000] SASC 146 and in particular para 117.

    2. The word "exploitation" does not necessarily convey defamatory meaning: refer Taylor v Jecks (1994) 10 WAR 309 at 320. This is an instance of it not conveying a defamatory meaning.

  8. PUBLICATION 2 (22/02/94) 7.30 REPORT

    1. The Plaintiffs rely upon the content and the context of the whole 7.30 Report in order to draw the defamatory imputations to the words of the Second Defendant. They might be able to do that as against the ABC. They cannot do that as against the Second Defendant (and through her, the First Defendant). The Second Defendant will assert that she was addressing a meeting of The Friends of Goolwa and Kumarangk Inc and with no knowledge that an ABC journalist was present and that the address was being filmed (see Defence paras 22, 25.2). The Second Defendant had no input into the preparation of the segment. In the event the Second Defendant’s words must stand by themselves. They do not carry the defamatory imputations of the Plaintiffs as alleged.

  9. PUBLICATION 3 (09/03/94) "FOOL’S GOLD"

    1. This is a clear instance of criticism of Government. The Defendants say that the same reasoning applies as is expressed by the Full Court in Chapman v ABC above at para 117.

  10. PUBLICATION 4 (09/03/94) "SECOND-RATE MINDS"

    1. The Defendants repeat the submission in 9.1 above.

    2. The Defence of fair comment is also pleaded in respect of this publication. The Defendants will establish the factual basis of the comment.

  11. PUBLICATION 5 (MAY/JUNE 1994) "SLAPP SUIT"

    1. The Defendants contest the asserted defamatory meaning. The Defendants invite a comparison with the comments in Chapman v ABC at paras 135 to 139 and 192 to 194.

    2. The Defendants also plead a Polly Peck meaning by paragraph 67 of the Defence. The proposed meaning is clearly arguable and the capacity to justify that meaning is clear.

    3. The Court will be obliged to address the vexed question of the Polly Peck defence. Polly Peck defences are raised as well in respect of publications 7 and 10. Whilst the Chakravarti decision left a certain cloud over the defence it is submitted that the three pleas herein come well within what is acknowledged to be appropriate in this country. The alternative meanings are all within the common sting. Reference is made to the following cases:

    Khashoggi v IPC Magazines Limited [1986] 3 All ER 577.

    David Syme & Co v Hore-Lacy [2000] VSCA 24; Aust Def Law Reports [53,055].

    Roberts and Case v Bass [2000] SASC 297 per Williams J at paras. 12-17.

    Reynolds v Nationwide News [2001] WASC 90.

    Cf. Robinson v Laws and Radio 2UE, Queensland CA, 6.4.2001

    Selecta Homes v Advertiser News Weekend [2001] SASC 140 paras 19021 and 149-156

  12. PUBLICATION 6 (SEPTEMBER/OCTOBER 1994) "SUPRESSION OF FREE SPEECH"

    1. This is the only publication which involves the Third Defendant (Shearman).

    2. As to the defamatory meaning the Defendants again invite comparison with Chapman v ABC at paras 135-139, 142-145 and 192-194. Whilst the Plaintiffs have toned down the alleged defamatory imputations in line with the decision in Chapman v ABC, the Defendants query whether the remaining alleged meanings are defamatory.

    3. The Defendants plead a Polly Peck Defence (Defence para 75A). The alternative meaning is clearly arguable and capable of being justified.

    4. The Defence of fair comment is pleaded and is open.

  13. PUBLICATION 7 (NOVEMBER/DECEMBER 1994) "BOOT OF BINALONG"

    1. This is the only publication which involves allegations against the fourth defendant (Owen).

    2. Whilst it is not admitted that a defamatory meaning arises it is conceded that the meaning in 66(a) is arguable. It is further suggested that the meaning pleaded in 66(b) is not open, and the meaning in 66(c) does not add to the meaning in 66(a).

    3. An alternative Polly Peck meaning is pleaded (Defence para 85A) and can be justified.

    4. The Defence of fair comment is pleaded (Defence para 86) and the factual basis of the comment can be established.

  14. PUBLICATION 8 (APRIL/JUNE 1995) "INTIMIDATION, SPIRITUAL RAPE"

    1. There is no defamatory meaning. It is not possible to defame a whole nation. A whole nation is too big a class.

    2. The Defence of fair comment is pleaded (Defence para 94). The factual basis for the comment can be established.

  15. PUBLICATION 9 (APRIL/JUNE 1995) "QUICK PROFITS"

    16. 15.1 The article criticises the government. The Defendants repeat their submissions in respect of Chapman v ABC at para 117.

  16. PUBLICATION 10 (JULY/SEPTEMBER 1995) "NO CONSULTATION"

    1. The Defendants state that there is no defamatory meaning. Some assistance may be drawn from Nationwide News v Chapman [2001] SASC 30.

    2. The Defendants plead an alternative Polly Peck meaning (Defence para 115). This is the proper meaning. It is capable of being established from the evidence of Wendy Chapman before Justice O’Loughlin in the Federal Court injunction proceedings.

    3. The Defendants will submit that an assertion that someone has not behaved within the current bounds of political correctness does not mean necessarily that the assertion is defamatory.

  17. CONCLUSION

The within proceedings are misconceived. Apart from all of the issues associated with identification and meaning the Plaintiffs have failed to appreciate the importance of the implied constitutional freedom and its effect on the law of defamation: Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Stephens v. W.A. Newspapers (1994) 182 CLR 211; and Lange (supra)

DATED the day of 2000

DUNCAN BASHEER HANNON

Per:

66 Wright Street

ADELAIDE SA 5000