Bass v McDonald & TCN Channel Nine Pty Ltd (No.8) [2001] NSWSC 1033

Reported Decision : [2001] NSWSC 1033 [2001] ACL Rep 145 NSW 57

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.8) [2001] NSWSC 1033 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 17 - 19 October 2001 22 & 23 October 2001 HEARING DATE(S) : 25 & 26 October 2001 29 - 31 October 2001 1 & 2 November 2001 5 - 9 November 2001 JUDGMENT DATE : 21 November 2001

Robin Bass PARTIES : Thomas McDonald TCN Channel Nine Pty Ltd JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant SOLICITORS : William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant CATCHWORDS : Defamation - qualified privilege at common law and "Qualified Protection - Excuse" under Queensland and Tasmanian legislation - publication of riposte by a third party - whether defences made out LEGISLATION CITED : Defamation Act 1889 (Queensland), s16 CASES CITED : Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 DECISION : See paragraphs 34 to 36 of the judgment.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

Sperling J

Wednesday 21 November 2001

16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd Draft Judgment (No.8 – Qualified privilege at common law and statutory qualified protection, Queensland) 1 His Honour: Before final addresses, I had ruled that the reply of malice was not available in this case to the defence of qualified privilege at common law, and that the equivalent reply was not available to statutory qualified privilege. The issues remaining for determination were the defences of common law and statutory qualified privilege, truth (in its various forms, depending on place of publication), unlikelihood of harm (NSW only) and damages (if the claim survived the defences). The issues for the jury were truth in relation to that defence, unlikelihood of harm and damages. The issues for me were the defences of common law and statutory qualified privilege and the second limb of the defence of truth (which varied from one place in Australia to another). 2 Mr McClintock moved for judgment on the defences of common law and statutory qualified privilege. I heard argument concerning these defences (Transcript 447 – 487), but I reserved my decision and allowed the case to go to the jury on the issues which were for them to decide. 3 In relation to publication in NSW, where the defence of truth is pleaded separately to each imputation, the jury found that the first imputation (that the plaintiff was a shonky operator) was substantially true, but not so in relation to the second imputation (that the plaintiff could not be relied upon to pay money due to his workmen). They rejected the defence of unlikelihood of harm (which applied only in relation to NSW). They found that truth was established in relation to publication of the programme as a whole elsewhere in Australia. They assessed damages at $10,000. 4 The second limb of the defence of truth is public interest or qualified privilege in relation to publication in New South Wales; and public benefit in some other parts of Australia where publication occurred. The plaintiff, however, concedes public interest and public benefit where those elements arise. Accordingly, the jury's findings as to truth determine that defence against the plaintiff in relation to the first imputation (for NSW) and in relation to the programme as a whole (for other parts of Australia). 5 The effect of the jury's findings is that the plaintiff is entitled to damages as assessed by the jury, for the publication of the second imputation in NSW, subject to the defence of qualified privilege. 6 It remains then for me to decide whether the defence of qualified privilege at common law is made out. Although it is unnecessary to do so, I will also decide whether the defence of statutory qualified privilege is made out, as pleaded in relation to publication in Queensland and Tasmania. (I have ruled that there was no evidence of publication in Tasmania but the legislation of Queensland and Tasmania is identical.) 7 The "60 Minutes" programme went to air on 22 July 1990. On 16 July 1990, the plaintiff had given a recorded interview to the defendant in which he recounted a series of events which, if true, amounted to a course of malicious victimisation, directed against him by the BWIU or by certain officers of that union, culminating in a black ban which put him out of business altogether. The transcript of the interview is some 24 pages in length. 8 On 18 July 1990, Mr McDonald, state secretary of the union was interviewed. At that stage, the defendant had a good deal more evidence of alleged misconduct by the union. Mr McDonald's interview was not limited to the allegations made by the plaintiff. It included a response to allegations made by a Mr Fields who also complained of alleged abuse of power by the union. 9 The programme, as compiled, consisted of several segments. These included a segment concerning the plaintiff and a segment concerning Mr Fields. The segment concerning the plaintiff was brief. The following is the transcript of that segment: MUNRO "Employers like contractor Robin Bass accuse the union of victimisation". BASS "It was a personal vendetta as far as I was concerned against Robin Bass. Nobody else just Robin Bass". MUNRO "Bass says he hasn't worked for 5 months and his house is now up for sale all because of a BWIU blackban". McDONALD " He was a shonky operator who owed workers money and he got into a dispute with the Union for that particular reason ". MUNRO "At one stage Bass employed 185 men. Now he can't even employ himself". "I've got a statutory declaration here from a senior BWIU official. He says the RW Bass affair was perhaps the greatest case of victimisation I have observed by any one union against any one contractor. Now that's a very serious allegation. The man's name is not there because he is in fear of his livelihood and life". McDONALD "Obviously I'm not sure if who this anonymous person is". MUNRO "I appreciate that". McDONALD "I'm not even sure whether its some person claiming to be an official of the union that's not an official of the union. It's a wild allegation". MUNRO "The allegation is this". SUPPOSED "I'm aware through my work as a UNION BWIU official that officers of the OFFICIAL BWIU met with executives from a major construction company and warned them that if they employed RW Bass it could lead to industrial problems". McDONALD " We make no apologies to any employer that does not meet their legal obligations to our members ". MUNRO "So is the BWIU more interested in worker's rights or just bashing the bosses…" [Emphasis added.] 10 The defence of qualified privilege at common law, when based on riposte, is stated sufficiently in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, 514 (per Latham CJ): The result is that in my opinion, the learned trial judge and the Full Court were right in deciding this case upon the basis of the following statement taken from Gatley on Libel and Slander, 2nd ed. (1929) p293: "A person whose character or conduct has been attacked in the public press is entitled to appeal to the same tribunal in his defence and vindication, and if, in answering such attack, he makes relevant defamatory statements about the person who has attacked him, such statements are prima facie privileged". This principle protects both the person attacked and the proprietor of the newspaper which publishes his reply to the attack.