CATCHWORDS Defamation - words indicating loss of confidence of members of political party in leader of party - whether defamatory of eader. John Fairfax § Sons Limited § anor. v. Leon Ashton Punch No. F.C. 39 of 1979 CORAM: Blackburn, Northrop and Brennan JJ. DATE: 29 August 1980. CANBERRA IN THE FEDERAL COURT OF AUSTRALIA ) ) GENERAL DIVISION ) No. F.C. 39 of 1979 ) CANBERRA REGISTRY ) BETWEEN: JOHN FAIRFAX §& SONS LIMITED and AUSTRALIAN ASSOCIATED PRESS PTY. LIMITED Appellants AND: LEON ASHTON PUNCH Respondent ORDER JUDGES MAKING ORDER: Blackburn, Northrop and Brennan JJ. DATE OF ORDER: 29 August 1980. WHERE MADE: Canberra THE COURT ORDERS THAT: (1) the appeal be dismissed with costs. BLACKBURN §& NORTHROP JJ. The main question for determination in this appeal 1s whether certain published material was capable in law of being defamatory of the respondent. The trial judge's finding that the material was in fact defamatory was also challenged; but this argument was subsidiary. The respondent sued the appellants in the Supreme Court of the Australian Capital Territory for damages for defamation. At that hearing the appellants relied upon a number of other defences which were rejected. The Court awarded damages against the appellants. On appeal, the appellants did not challenge the reasons of the learned trial Judge insofar as they related to thaovre unsuccessful defences, nor did they challenge the quantum of damages awarded to the respondent. As a result, the issues raised on the appeal were limited to the two issues alieady mentioned. To prevert the possibility of misunderstanding, 1t must be made clear that tl]: question of qualified privilege did not, and on the facts could nuc, arisc. In April 1976 the respondent sucd the appellants in the Supreme Court of the Australian Capital Territory for damages fo1 defamation. The respondent was a member of the Legislative Assem' 's of the Parliament of New South Wales, and Leader of the Australia Country Paity (N.S.W.) in that Parliament. He was at the materia. time the Deputy Premier of New South Wales. The first named appellant (Tairfax) published The Sydney Morning Herald, The Canb .: Times, Newcastle Morning Ilerald, and Norther Star newspapers. Th second named appellant (A.A.P.) operates a news and information service to persons including the publishers of newspapers. Ln order to understand the material alleged to be defamato1y, 11 18 necessary to make a brief reference to the Sstatuto1y system for the distribution and sale of milk for human consumption which has been in force for some time in the State ai New South Wales. Only those dairy farmers whose farms are in certain parts of the State get the benefit of having their milk sold in the major cities, namely Sydney, Newcastle and Wollongong Dairy farmers whose farms are in the north coast area, the south coast area, and the Riverina area, do not enjoy this lucrative benefit. This has been a long-standing source of dissatisfaction to dazry farmers in these areas. Many of these farmers are membeis and supporters of the Country Party, and have for a long time maintained a substantial campaign to persuade the Country Party and indeed the Government of New South Wales to alter the system so as to allow milk produced by them to be sold in the major cit? s This campaign has been resisted by those dairy farmers whose farms are in the areas from which, under the existing system, milk 1s produced and sold in the major cities. The system so described °-~ referred to as the "milk quota system'' and the dispute as the 'm:th quota dispute". The first of the articles alleged to be defamatory was 3 the following terms and was published by the first named appellen: to the sccond named appellant on 29 April 1976 "About 250 dairymen and members of the New South Wales Country Party resigned from the State Party at a mecting in Bega on the South Coast tonight over the milk quota dispute. 'the group who resigned alse called for the resignation of the New South Wales tanaster for Agriculture Mr. Conan and vw the Deputy Premier and Leader of the Country Party, Mr. Punch over the dispute. While they decided to resign from the State Party they voted to place their party membership fees in a Trust Account for the Tederal Country Party and maintain affilzation with thas Body. The South Coast dairymen, along with other farmers from the North Coast and Riverina areas, have been campaigning for a redistribution of the existing milk quota system that allows about 2700 dairy farmers io supply the lucrative wilk markets in Sydney, Wollongong, Newcastle and major country towns. About 1200 dairymen have been excluded from the quota system The campaign for a redistribution of the quotas has been led by a North Coast dairyman, Mr. Atex Armstrong, Chairman of the Dairy Action Group and who 1s also Deputy Chazrman of the Norco Co-Operative Dairy at Lismore. The Chairman of the pro-quota group, the Dairymen of The County of Cumberland, Mr. D. Crosby claimed ioday that Norco stood to zncrease its turnover gross profit by $1.3 million a year if the quotas were redistributed. There are 212 members of the Cumberland group." The second of the articles was in the following terms ¢cn' wes published in the "Canberra Times't on 30 April 1976° "N.S W. Election Dairymen quit State C.P. over milk quotas. BEGA, Thursday - About 250 dairymen resigned from the New South Wates Country Party tonight over the milk quota dispute. The group also called for the resignation of the New South Wales Minister for Agriculture, Mr. Cowan and the Deputy Premzrer and Leader of the Country Party, Mr Punch. They voted to place their party membership fees in a Trust Account for the Federal Country Party and maintain affiliation with this Body. The 1esagnations occurred at a special meeting in Bepa of dairy farmers to discuss the dispute. The move seriously embartasses the Country Party on the eve of Saturday's State election. The South Coast dairymen along with other farmers from the North Coast and Riverina areas have been campaigning fo1 a redistribution of the existing milk quota system that allows ubout 2700 datry farmers to supply the lucrative fresh milk markets in Sydney, Wollongong, Newcastle and major country towns." The thiid of the articles was in the following terms and was published in the "Newcastle Morning Herald" on 350 April 19/6- "Dairymen quit C.P. in protest - SYDNEY, Thursday - About 250 dairymen and members of the New South Wales Country Party resigned from the State Party at a meeting in Bega tonight over the milk quota dispute. The da1rrymen called for the resignation of the N.S.W. Minister for Agriculture, Mr Cowan, and the Deputy Premier and Leader of the Country Party, Mr Punch. They voted to place their party membership fees in a trust account for the Federal National Country Part) and maintain affiliation with that Body. — he South Coast dazrrymen along with farmers from he North Coast and Riverina areas, have been ampaigning for a redistribution of the milk uota system. he system allows about 2700 dairy farmers to upply the lucrative milk markets in Sydney, ollongong, Newcastle and major country towns bout 1200 dairymen have been excluded from the quota system. rPeMYt aa 'The campaign for a redistribution of the quotas has been led by ilr A. Armstrong, a North Coast darryman, who 1s Chairman of the Dairy Tarwers Action Group and Deputy Chairman of the Norco Co-Operative Dairy at Lismore. Mr D. Crosby, Cha1rrman of the Dairymen of The County of Cumberland, a pro-quota group, said today that Norco would increase wts turnover gross profit by $1.5 million a year if the quolas were redistributed." The fourth of the articles was in the following terms ai: was published in the "Northern Star" on 30 April 1976. "250 S Coast dairymen quit State C.P. SYDNEY. - About 250 dairymen and members of the N.S.W. Country Party resigned from the State Party at a mecting in Bega on the South Coast last night over the milk quota dispute. The group who resigned also called for the yeSignation of the N.S.W. Minister for Agriculture, Mr. Cowan and the Deputy Premicr and Leader of the Country Party, Mr. Punch over the dispute. While they decided to resign from the State Party, they voted to place their party membership fees in a trust account for the Federal Country Party and maintain affiliation with this Body. The South Coast dairymen along with the other farmers from the North Coast and Riverina areas have been campaigning for a redistribution of the cxisting milk quota system that allows about 2700 dairy Farmers to supply the lucrative milk markets in Sydney, Wollongong, Newcastle and major country towns. About 1200 dairymen have been excluded from the quota system. The campaign for a redistribution of the quotas has been led by a North Coast dairyman, Mr Alex Armstrong, Chairmen of the Dairy Action Group, who is also Deputy harrman of the Norco Co-Operative Dairy Company at Lismore. The Chairman of the Pro-quota group, of the Dairymen of The County of Cumberland Mr. D. Crosby claimed yesterday that Norco stood to increase its turnover gross profit by $1.3 million a year if the quotas were redistributed. There are 23/2 members of the Cumberland group " There was to be an clection Cor the Siate Parliament con ] May 1970. The publication of the articles occurred therefore at tine very climax of the election campaign in which the respondent, as Leader of a major party in the Parliament, and as Deputy Prem.. of the State, was taking an active part. The Jearned trial judge held that the four articles vere capeble of being defamatory of the respondent. In respect of the first ol the four, he expressed his reasoas for his decision as follows. lle later said that his reasons for the same decision in respect of each of the other three articles were the same "Thus anstructed, T proceed to the article itself (and later to others). As T read 1t, ut refers to a group cf persons, significant 1n number. They, at a meeting, nor merely resigned Cram the New South Wales Country Party which, presumably, hitherto they had supported, but at the same time they called for the resignation of its leader (plaiunti£f£) That this move was made on the eve of an election, underlines the1rr degree of disapproval of him, they had decided at that stage, unequivocally, that they would have nothing to do further with the New South Wales Country Party of which he was the leader and that that Party would be served 1f he resigned. Although the censure was in terms 'over the (milk) dispute', the anference 1s that he had so failed to carry out the task of leader, that he had lost their confidence and their respect to him The pointed nature of their action is further emphasized when 1t 1s noticed by reference to the third paragraph of the article, that they had decided to adhere to the Federal Country Party, maintaining affiliation with it, but so to act in relation to membership fees as to ensure that no funds of theirs would support thereafter the Party of which the plaintiff was the leader. The article leaves no room for a consideration of whether the proposed resignations were a matter of mere discussion or that the call for the plaintiff's resignation was not a decision firmly taken, nor does it leave any basis for discounting the number 250 dazrymen to whom reverence 1s made There 1s conveyed not only a condemnation by that number of persons, but the sincerity of their views, in that they are also members of the party of which he is leader To the ordinary reader 1t would appear they have taken this step even at the risk, possibly, he mght think, of prejudicing the chances of the party's survival at least in that area in the forthcoming election. The plaintiff is presented thus as a leader who has in thei eyes 1s members of has Party, exhibatcd such an incapacity because perhaps of his part in adhering to or maintaun- ing an unfairly regulated system that he 1s no longer fit to be leader. It 18 not merely that he 1s unfit to be their leader in the m21k quota dispute, though it may be that at was in this aica that he demonstrated Nis incapacity. In my View, as a matter of law, the article could convey do meaning which 1s defamatory of the plaintiff." "J For the appellant it was said in the first place that the articles ajJl clearly confine the allegation of dissatisfaction wit? the respondent to the area of the milk quota dispute; it 15 not suggested that the persons present at the meeting had any other topic upon which their dzssutisfaction was expressed. It nas arzuce that the sense of the articles was that the only reason why the persons present at the meeting ("the members") did not want the respondent as leader of the party was that he had taken the side ii the milk quota dispute opposite to that which they themselves took. and that they felt so strongly about this that they wanted some other person to be leader It was contended that, so read, the articles contained nothing defamatory of the respondent, that the articles amounted to no more than a statement that the members' disapproval of the respondent's attitude on the milk quota dispute Was so strong that they demanded his resignation. The articles, counse] said, merely said the membcrs expressed their disapproval of a particular policy very strongly - so strongly that they calle: for the respondent's resignation as a means of demonstrating the strength of their opposition. The argument wes put tn the alternative either that to say of the leader of a political party that some members of the pu want him to resien ts not in itself capable in law of being defamatory et all, or that to say that of him is not defamatory wh the reason tor wanting him to resign 18 clearly demonstrated Lo be maiter which docs not go to his credit. What, an this case, the articles say us that a substantis nunber oF members of a State politicel party, on the cve of an clectison which was being contested by that party, themscives ieso' Ce to resign from that party but maintain their support for the part in the Iederal sphere, and to call for the resignation From his position of the leader of their party, he also being Deputy Premic of the State In our opinion it is capable in lay of being defamatory to say of a politician who is a leader of his political party that he has lost the confidence of a sign3ficani number of members of his party, because that necessarily attribute incompetence to him. It is an essential part of the competence of the leader of a political party to hold the confidence of the mem! 1 of his party. The amputation that the respondent had lost the confidence of some members of his party arises inescapably from t} > fact thet tnose members have called for his resignation as leader and that on the eve of an election. Jt was put to counsel for the appellants, during the arate: that the articles might not be defamatory if they implied that th members! vote was essentially insincere, 1.c though not wanting the respondent's resignation, they called for it as a tactical device ic foice him to take some step 1n connection with the milk quota disput knowing £ull well that rather than resign he would take that step Counse] expressly disclaimed any reliance on this suggestion, whic he said could not be supported as an interpretationof the article: He maintained his Fundamental argument that the call for the respondent's resignation was no more than an expression of the der of the members' disapproval of the mi1k quota system. But there no ratienel eaplunation of a demand, made on the eve of an electin for the resignation of the leader of a party who 1s also Deputy Premier, which does not imply a want of confidence in him; at the very least, the implication must be that be is expendable. Impl. yn counsel's argument must be the irrational notion that a gesture ol protest can be understoad anly as such and not as anything morc. whatever form 1t takes and whatever the protesters in fact say. In the alternative, as we have noted, counsel contended fra the articles mean that the members wanied to end or change the mill quota system and that the respondent supported and wanted to retair ut; that beirng so, the call for the respondent's resignation was explained as a difference of opinion on policy \.hich retlected no discredit on the respondent. Counsel for the respondent contended that this was not the natural sense of the articles, in all of whivn (despite some differences of wording) the milk quota dispute is mentioned merely as the topic in connection with which the issue between the members and the respondent arose. We are disposed to agree with this latter contention, but in our opinion the questior is unimportant. The inescapable fact 18 that the members are saiu to have cajJled tor the respondent's resignation on the eve of an election. If the articles had said that and nothang more, they wo have amplicd a want of confidence in him and thus have reflected ox his competence as a politician and leader of the party. To conten' that there 1s some explanation of thac statement which would not reilect upon the respondent's character or competence 15 to attribute to the "ordinary sensible reader" the smagination of a novejdist, the verbal precision of a conveyancer, ard the capacity a judee fur suspended decision. If (as counsel for the respondent contended end we think) the articles mentioned the milk quota dis} - only as the topic in connection with which the iussue atase, the resuit wuld be eaactiy the same. TF (as counsel for the appelta contender) the articles imply, as the reeson lor the members! cali for the 1espendent's resignation, the respondent's siupport for the 1a. mzlk quola system, as against the opposite view taken by the members, the implication is none the less that the respondent lachic the confidence of those members. Members! opposition to a policy supported by a party leader may be a ground for tesigning from. ti party, but not for demanding the resignation of the leader, unless cither the members belicve that some other person would be a bette leader to get the policy changed - which implies a lack of confidere in the present leader - or the policy in question 15 not the poli, of the party, 1.c the leader is publicly opposing the party's pol-c. The learned trial judge rejected this latter possibility as a possible imputation arising from the articles. . Counsel for the appellants was at some pains to attach tn learned trial judge's treatment of the amputations which were all: . to arise [rom the articles in question. There were five such imputations, as Lollows. "(1) That the plaintiff was a person unfit and yncompetent to hold office as the Deputy Premier for the State of New South Wales and as a Leader of the New South Wales Country Party; (2i) That the plaintiff as Leader of the Nev South Wales Country Paity lacked the confidence and support of the majority of members of the New South Wales Country Party; {112) That the plaintiff in the course of his campaign for re-election to the Legislative Assembly of the State of New South Wales ai the Elections 1n May 1976, supnoited policies inconsistent with those of the New South Wales Country Party and contrary to the best unterests of its members. L1 tiv} That the pluantaffl so lacked the confidence of substanti1al numbers of members oi the New South Wales Country Party that they were prepared on the eve of a State election in which that party was ficlding candidates for Parliamentary office to embarrass the said Party (a) by calling upon the plaintiff to resign as Leader of the said Party and (b) by themselves resigning from the said Part}. {v) Thet the plaintiff had lost the confidence of substantial numbers of dairymen and members of the New South Wales Country Party who lived and carried on business 1n Nev South Wales in relation to the issue of the milk quota system." ™ The learned trial judge adverted to these imputations in the cour of considering whether the articles vere defamatory in Lact Tt not clear why he did so in this context when he had already decid without referiing to these anputations. that the articles were capable in law of being defamatory. This does not, however, arfa the correctness of his judgment. What his Honour said was this. "First, I should say that I do not agree that the article is capable of conveying imputations numbered (i), (ii), (i131) which are referred to un Particulars supplied by the plaintiff to the defendants' solicitors and to which considetable reference had been made in argument. In my view, however, the well-instructed jurymen would find that by a continued adherence to a policy, the Leader of the New South Whales Country Party and the Party itself, whose activities would have been largely iunfluenced by 1ts leadership (including that of the plaintiff) had both proxyressively lost the confidence and membership of a noticeable number of ats former members, Lhat this had occurred because of his association vith a system which excluded some dairyvmen from a 'lucrative! milk market un cittes named and rajor count?) touns. Tn the resute)e he no longer retained such capaczuty or therr confidence wn him as to retdin that position The milk quota issue might be expressed to be the area rherein he displayed yneptitude. But finally, wt is his quality for Ieadership "hich the dissidents reject. So the difference between the two imputetions fir) and fv) ts tnut one spells out where he failed, the other t Lota goes directly to the degree of incapacity. It js unlikely, perhaps, that one's expression of an imputation he takes from an article could be precisely matched or captured by a pleader who necessarily sought 1o express by his own interpretation the iwmpression the reader might receive. Though not adhering exactly to the terms of imputation (iv) or (v) as being what I would choose, I find that in substance they have been made out." Counsel's attack was twofold. In the first place he said that his Honour's acceptance of the imputations numbered (iv) and (v) was inconsistent with his rejection of those numbered (1), (11) and (iil), particularly (i). In our opinion, however, the difference 1s patent. Imputation (i) 1s a judgment upon the plaintiff's fitness for office, made as 1t were by the objective observer without regard to party. TImputation (11) speaks of the majority ¢ members of the party. Imputation (111) attributes to the plainti. support for a policy inconsistent with that of the party. In our opinion it 1S e#sy to see that none of these imputations is suppor' by the articles Imputations (iv) and (v) are statements that the plaintiff lacked the confidence of a substantial number of member: .., the party and are thus attacks on the plaintiff's competence as a politician and party leader. We agree with his Honour's decision »# these imputations. In the second place, counsel criticized in particular hi: Honous's interpretation of imputations (1v) and (v), an particula his use of the phrases "his quality for leadership" and "one spel. out wheie he Casled, the other goes directly to the degice of yncapacity™. Tt may be that some readers vould have difficulty 11 agiceiny wrth his Honour's cho1ce of words 1n expressing the sens, of the articles That 1s beside the point his Honour's dec1sio namely that the articles bear imputations (iv) and (v), is what matters, and not the particular words he chose for explaining that decision. In the result, we agrec with his Honour that the words complained of are capable in law of being defamatory of the plaintiff, and see no reason to differ from his finding that they were so in fact. The appeal] should be dismissed with costs. ao TO SR ne nt I ceruy*y that this and the Luehe breve . 2p es aeat:e cony of the '*duugmegt herein of bis Honou> . ~> 4 mt, JususveQBrk tify that this and the doeboe crecs. 12 BP 'Ss ave a tr e covy of the = ~ er O Reas 3 for Jeugmesit herein or Lis Honour F ais lar, Justace Nentlee?? Associate TN THR FRDERAL COURT OF AUSTRALIA GENERAL DIVISION CANBERRA REGISTRY 29 August 1980. BRENNAN J : No. 39 of 1979 ww wv ve ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : JOHN FAIRFAX & SONS LIMITED and AUSTRALIAN ASSOCIATED PRESS PTY. LINITED Appellants (Defendants) AND : LOON ASHTON PUNCH Respondent (Plaintiff) CORAM : Blackburn,Northrop and Brennan JJ. Damages for defamation were awarded to the plaintiff respondent in respect of the publication of articles the texts of which are set out in the judgment of Blackburn and Northrop Ju. The first article was disseminated two days before a general election for the Parliament of New South Wales, and the other articles were published on the eve of the election. The respondent was, at the time of publication, the Deputy Premier of New South Wales and the Parliamentary Leader of the Country Party. He had led his party during the election campaign. Counsel for the appellants submitted that the articles went no further than saying that certain members of the Country Party had expressed their desire that the respondent should be no longer Leader of that Party. It was submitted that the articles did not disparage the respondent merely by saying that 250 dairymen who were members of the Country Party no longer had confidence in him. It was submitted that such a statement is not defamatory, for it does not lower the respondent in the estimation of right thinking people: it does not impute to him any discreditable conduct or quality. The submission is not well founded. A person may be defamed by an imputation of a disability affecting the performance of the functions of his office, although the imputation does not expose him to hatred, contempt or ridicule. No doubt that proposition appears at odds with what Parke B. said in Parmiter v. Coupland (1840) 6 M & W 105 at p.108; 151 E.R.340 at p.342, in a passage which Gatley (Libel and Slander, 7th Edn., p.4) describes as a "classic definition": "A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel." But it has long been held that that passage is too narrowly stated. Scrutton L.J. in Youssoupoff v. Metro-Goldwyn Mayer (1934) 50 TLR 581 at p.584, said that a defamatory statement is a "false statement about a man to his discredit". And in Pratten v. The Labour Daily Mail Ltd. (1926) V.L.R.115, a new trial was granted on the application of a plaintiff Minister of the Crown where the trial judge had declined to direct the jury that they might find for him if the article attributed to him want of capacity as a Minister (see the report p.118). Cussen J. (as he then was) said (at p.123): "In Clerk and Lindsell on Torts (7th ed.), pp.549, 551,552, 1t 18 stated that a man may be libelled in respect of his personal character or of his office, etce., and that 'if a libel is directed against a man with special reference to his calling or office, the words used need not be provocative of hatred, ridicule, or contempt; it is sufficient if their tendency is to injure.' See also Spencer Bower on Actionable Defamation (2nd ed.), p.3. In Capital and Counties Bank Ltd. v. Henty ({1882] 7 A.C.741, at p.771), Lord Blackburn says:- 'A libel for which an action will lie is defined to be a written statement published without lavful justification or excuse, calculated to convey to those to whom it is published an imputation on the plaintiffs, injurious to them in their trade, or holding them up to hatred, contempt, or ridicule'; and at p.762 Lord Penzance says, after quoting Parke,B. in Parmiter v. Coupland (f£1840] 6 M & W105) - 'The learned Judge is'hepe only speaking of libels which affect reputation and character; but I am not aware that those which affect a man's credit in his trade stand upon any different footing.' The fact that Lord Penzance dissented in the case mentioned does not, we, conceive, affect the authority of this particular 4. statement. The two learned Lords speak of 'trade' only, but this has, we think, been altiays taken as illustrative of trade, business, calling, profession, or office. It is clear from many cases that the word 'injurious' in Lord Blackburn's statement means 'having a tendency to harm.' " Bray C.J., with whom Wells and Sangster JJ. agreed, reached the same conclusion in Potts v. Moran (1976) 16 SASR 284 at p.302: " It is clear that it is defamatory to impute to a man inefficiency or incapacity in his occupation unless that occupation is unlawful. To do so defames him, not only in the eyes of those of the same occupation or those connected with him in his occupation, but in the eyes of the community generally, or the reasonable members of it. In Alexander v. Jenkins ([1892] 1 Q.B.797, at p.800) Lord Herscheil said (in an action for slander but the difference between libel and slander is not material for the present purpose): 'It is quite clear that as regards a man's business, or profession, or office, if 1t be an office of profit, the mere imputation of want of ability to discharge the duties of that office is sufficient to support an action. It is not necessary that there should be imputation of immoral or disgraceful conduct.' " And in Queensland, where s.366 of the Criminal Code distinguishes between an imputation by which a person "is likely to be injured in has profession and trade" and an imputation "by which other persons are likely to be induced to shun or avoid or ridicule or despise him", Henchman J. in Queensland Newspapers Pty.Ltd. and Hardy v. Baker 1937 St.R.Qd.153 at p.179, showed how an aspirant for public office may be injured by an imputation which affects his support: "And when the facts, as here, show that the person defamed depends for his livelihood on the continued support, in his candidature for public office, of friends, co-workers, co-partisans, and constituents, to publish concerning him matter likely to cause that support to be withdrarmn is surely to do that which is capable of injuring him in his 'profession or trade' within the meaning borne by those words in s.366 of the Code. In my view, those words, having regard to the object of the clauses of the Code dealing with defamation, which is a criminal offence as well as a civil wrong, and to the history of the law of libel and slander, should receive the widest possible meaning, a meaning embracing all occupations by which a man earns his daily bread, provided only that they be not illegal. " The Code is not to be equated with the common lav (West Australian Newspapers v. Bridge and Tozer 53 A.L.J.R.465; Murphy v. Australian Consolidated Press (1968) 3 N.S.W.R.200 at pp.205,206), and injury to a plaintiff's profession or trade without disparagement of reputation does not suffice to make an imputation defamatory. But it disparages the Parliamentary leader of a party to say of him that he has lost the confidence of a significant number of his party followers. The retention of confidence is a badge of successful leadership; the loss of confidence of a significant number of party followers carries a contagion of electoral failure, and puts in question the leader's ability to unite his party and lead it to electoral success. An imputation that a Parliamentary party leader has lost the confidence or support of a significant number of party followers thus disparages his reputation as a leader and tends to affect his ability to retain that office. Of course, it is one thing to hold that such an imputation is defamatory; it is another thing to find that the publication of such an imputation is actionable. The legitimate public interest in a matter of that kind, and the public good which is served by the publication of information relating to shifts in political allegiance, would ordinarily ensure that the occasion of publication is one of qualified privilege (cf. Caltvell v. Ipec Australia Ltd. (1975) 135 C.L.R. 321 per Jacobs J. at pp.335,336). But in the present case, no defence of qualified privilege was available. The report of the meeting was false, the reporter's copy having been written before the meeting took place; and when it did take place, neither the attendance at nor the proceedings of the meeting lived up to the reporter's forecast. At the time of publication, there was no honest belief in the truth of the matter published. Although the imputation of lost confidence was itself defamatory, the respondent pleaded five specific imputations and they are set out in my brothers' judgment. The learned trial judge (McGregor J.) found that none of the articles was capable of bearing the meanings assigned by the first three pleaded imputations. His Honour found: "In my view, however, the well-instructed juryman would find that by a continued adherence to a policy, the Leader of the New South Wales Country Party and the Party itself, whose activities would have been largely influenced by its leadership (including that of the plaintiff) had both progressively lost the confidence and membership of a noticeable number of its former members; that this had occurred because of his association with a system which excluded some dairymen from a "lucrative" milk market in cities named and major country towns. In the result he no longer retained such capacity or their confidence in him as to retain that position. The milk quota issue might be expressed to be the area wherein he displayed ineptitude. But finally, it is his quality for leadership which the dissidents reject. So the difference between the two imputations (iv) and (v) is that one spells out where he failed, the other goes directly to the degree of incapacity. It is unlikely, perhaps, that one's expression of an imputation he takes from an article could be precisely matched or captured by a pleader who necessarily sought to express by his own interpretation the impression the reader might receive. Though not adhering exactly to the terms of imputation (iv) or (v) as being what I would choose, I find that in substance they have been made out. " His Honour's finding fixed the meaning of the articles in respect of which the award of damages was made (see Slim v. Da1ly Telegraph Ltd. [1968] 2 Q.B.157 at pp.176, 177, 185). In this Court, the appellant submitted that his Honour was in error in finding that the articles (or any of them) conveyed in substance the imputations alleged in paras. (iv) and (v), and in finding that there was an imputation disparaging the respondent's quality for leadership. [In particular, it was argued that his Honour had found, and had found erroneously, that the articles made an imputation of personal ineptitude, incapacity or unfitness. In the context from which the cited passage from his Honour's judgment is taken, it does appear that his Honour found that an imputation of personal ineptitude in, and ineapacity and unfitness for office had been made - an imputation that went beyond a mere loss of confidence in the respondent, and attributed to the respondent a defect in his qualities for leadership. The meaning to be attributed to each of the articles depends upon its terms, understood in the light of the circumstances generally known when the publications were made (Ryan v. Ross (1916) 22 C.L.R.1 at p.29; Jones v. Skelton (1963) S.R.(N.S.W.) 644 at p.650). The article published to AAP on 29 April and the article published in the 'Northern Star' on 30 April each state that the respondent's resignation from the office of Deputy Premier and from his position as Leader of the Country Party was called for "over the dispute", that is, the milk quota dispute. The articles published in 'The Canberra Times' and in the 'Newcastle Morning Herald' on 30 April 1976 each stated that the resignation was called for but neither added the phrase "over the dispute". Clearly enough, all four articles linked the call for the respondent's resignation with the milk quota dispute, and it was submitted that the articles went no further than stating that the respondent's resignation was called for merely as a means of pressing the interests and viewpoint of some of the disputants. But the election in which the respondent was leading his party was to take place a day or two after the articles were published, that is, on 1 May 1976. That was a fact of common knowledge at the time when the articles were published, and it places the reported demand for the respondent's resignation in a significant context. A demand for the resignation of the respondent as Leader of the Country Party, made immediately before election day by a meeting of 250 members of his party, suggests that those members found his leadership gravely defective. If there were no dissatisfaction with his leadership qualities, what could account for the meeting of 250 members of the party taking a course fraught with electoral danger for the party as a whole? If those members had protested against the party's milk quota policy but had not taken exception to the leadership qualities of the respondent, it might have been expected that they would resign from the State branch of the party. But when a call for the leader's resignation is reported on the eve of an election, a reasonable reader not avid for scandal would readily infer that the respondent's personal qualities for leadership were defective. Whether the defect be cailed ineptitude, or incapacity, or unfitness, the defamatory sting is to be found in the inference that the meeting of 250 members of the respondent's party rejected his "quality of leadership". 10. The learned trial judge's finding as to the imputation conveyed by the articles is supported by the terms of the articles understood in the light of the known circumstances. That finding was, in my view, fairly within the ambit of the pleading of imputations (iv) and (v). The appeal must be dismissed with costs. si t ° ooG tify thet this and the .. 17° roceding pages are a true copy of the earons Tor Judgment herein of his Honour e. SUSLLG@ Orcsesus re ne io 4 & Len ces Associate ; Dated: 7 6 ac v