Randwick Labor Club Limited v Amalgamated Television Services Pty Limited [2000] NSWSC 906

New South Wales Supreme Court

CITATION : Randwick Labor Club Limited v Amalgamated Television Services Pty Limited [2000] NSWSC 906 FILE NUMBER(S) : SC 20024/98 HEARING DATE(S) : 14/08/00, 15/08/00, 16/08/00, 17/08/00, 18/08/00, JUDGMENT DATE : 18 September 2000

PARTIES : Randwick Labor Club Limited & Ors v Amalgamated Television Services Pty Limited JUDGMENT OF : James J

COUNSEL : M Neil QC/RA Campbell - Plaintiffs TEF Hughes QC/K Rees - Defendant SOLICITORS : Messrs Bowen & Gerathy - Plaintiffs Mallesons Stephen Jaques CATCHWORDS : Defamation - Damages DECISION : Damages assessed.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

ENTER DATE

20024/98 - Randwick Labor Club Limited & Ors v Amalgamated Television Services Pty Limited

JUDGMENT 1 HIS HONOUR: These are proceedings in defamation brought by eight plaintiffs against the defendant Amalgamated Television Services Pty Limited, the proprietor and operator of the television station ATN Channel 7, arising out of part of a news bulletin known as The Sydney Nightly News broadcast by the defendant between 6 pm and 6.30 pm on 5 June 1997. 2 The first plaintiff in the proceedings is the Randwick Labor Club Limited ("the Club"), which was incorporated as a company limited by guarantee in 1963 and which since 1963 has functioned as a licensed club at one or other of two premises in Alison Road, Randwick. The second to eighth plaintiffs, Ken Murray, Kevin Scott, John Francis Ford, Lena Bridge, Peter Robert Bell, Joseph Riordan and Leslie Frederick Bridge, were at the time of the broadcast on 5 June 1997 and have since remained, directors of the Club. Three other individuals who were at the time of the broadcast and who have continued to be directors of the Club did not join in the proceedings. 3 The relevant part of the Seven Nightly News bulletin broadcast on 5 June 1997 (I will henceforth refer to this part of the bulletin as ("the program") consisted of spoken words and visual images ("camera shots"). The words were spoken by two newsreaders, Ann Sanders and Adam Walters, and by Mr Richard Bull, who at the time the program was broadcast was a National Party member of the New South Wales Legislative Council and the shadow minister for gaming. The transcript of the words spoken in the program and a brief description of some of the camera shots in the program were set out in a schedule to the plaintiffs' statement of claim. The accuracy of this schedule was not challenged by the defendant. The schedule reads as follows:- " Schedule A Ann Sanders: A Sydney Club run by senior Labor Party figures may be charged with breaching licensing laws 13,000 times. The astonishing figure is being investigated by detectives who raided the Randwick Labor Club. Adam Walters: (Camera shots of Club from outside). It is not just another poker machine palace, it's as close as it gets to the New South Wales ALP's inner sanctum but the Labor Party's back rooms have been gate-crashed by the police investigating more than 13,000 alleged breaches of the Liquor and Licensing Act. (Single camera shot of photograph of all Board Members). (Close up camera shot of certain Board Members with names printed underneath). The Club's board reads like who's who of Labor Party number crunchers including right wing power broker and former Upper House President, John Johnno Johnson and senior ALP strategist, Ken Murray. Richard Bull: If these alleged 13,000 breaches are to be found, then these Directors are going to have to … mount a … answer to a please explain. Adam Walters: The alleged breaches relate mainly to irregularities in record keeping and book work. Senior police have confirmed the Club continues to undergo audits and other checks by detectives from the Licensing Enforcement Agency. (Camera shots of NSW Premier Bob Carr meeting patrons). The Club's patrons include Premier Bob Carr - seen here revelling in his election victory at what's become the traditional venue for ALP celebrations. (Camera shots of documents). Official documents on election funding show that between November 1991 and January 1995 the Club donated $125,000 to the Labor Party. Richard Bull: It is obviously their slush fund Club in the eastern suburbs. This is in Bob Carr's heartland. Adam Walters: Adam Walters - Sydney Nightly News". 4 A fuller description of the camera shots shown in the program would be as follows. Ms Sanders is shown reading the first two paragraphs of the transcript. The voice of Adam Walters is then heard reading the third paragraph in the transcript, while views of the exterior of the Club's premises, on which its name appears in prominent letters, are shown. After the camera shot of a group photograph of all the directors, separate photographs of Mr Riordan, Ms Ann Bowen a director of the Club who did not join in the proceedings, Mr Ford, Mr Bridge and Mr Murray are shown in succession. The name of each of these directors is shown at the foot of his or her photograph. Mr Ford is described as "vice-president" and Mr Murray as "president". While it is being shown, each of the photographs of the individual directors occupies the whole of the television screen. 5 Mr Bull is then shown, saying the words referring to 13,000 alleged breaches. He is described by words appearing in the camera shot as the shadow minister for gaming. Adam Walters is then shown saying the words commencing "the alleged breaches relate…". When Adam Walters says the words in the paragraph of the transcript commencing with the words "Senior police have confirmed", he is shown outside a grey building on which the words "Sydney Police" are clearly visible. 6 There are then camera shots of the Premier Mr Carr greeting patrons in a club. A number of witnesses, including Mr Carr himself, gave evidence, which I accept, that the club the interior of which is shown in the program is not the Club (that is the Randwick Labor Club) but the South Sydney Junior Rugby League Club. 7 When the camera shots of "documents" are shown, an area at the top and an area at the bottom of the picture are blacked out and the lighting of the remainder of the picture is fairly dim. What appears to be some kind of record with rows of entries is shown. In one row of entries there appear, from left to right, the name of the Club, the address of the Club and an amount in dollars. All of the entries relating to the Club are highlighted in yellow. 8 Mr Bull is then shown speaking the words "it is obviously their slush fund club in the eastern suburbs. This is in Bob Carr's heartland". As Mr Walters says the final words in the program, there is another camera shot of the same highlighted record shown earlier. 9 It is obvious that the program was compiled from a variety of sources. Although the program was broadcast at night, the camera shots of the exterior of the club, of Adam Walters outside the Sydney Police building and of Mr Bull were taken in daylight. 10 Evidence about the broadcasting of the program and the viewing audience of the program was supplied by the defendant, by Prime Television Limited and by AC Nielson media research. The program was broadcast by the defendant on one occasion only to metropolitan Sydney. The estimated number of viewers of the program in metropolitan Sydney was 322,000. 11 The program was broadcast once by Prime Television, an affiliate of the defendant, in its 6.30 pm news bulletin on 5 June 1997 to regional New South Wales and the Australian Capital Territory. The area described as regional New South Wales included the Gold Coast in Queensland. The estimated number of viewers of the program in the Northern New South Wales regional area, including the Gold Coast, was 119,000. The estimated number of viewers of the program in the southern New South Wales regional area, which included the Australian Capital Territory, was 154,000. 12 It was submitted by counsel for the plaintiffs, and not disputed by counsel for the defendant, that it could be inferred from information supplied by Prime Television and AC Nielson that there would have been about 33,000 viewers of the program on the Gold Coast in Queensland and about 25,000 viewers of the program in the Australian Capital Territory and I have proceeded on the basis that those figures are roughly correct. 13 At the time the program was broadcast by the defendant a meeting of the Board of Directors of the Club was in progress. The manager of the Club, who was not at the meeting and who had seen the program as it was broadcast, telephoned the boardroom and spoke to Mr Murray, informing him that a program about the Club had been shown by the defendant. About a week after the program was broadcast, members of the Board of the Club viewed a recording of the program. 14 On 19 June 1997 the solicitors for the Club prepared a letter to the defendant. In this letter the solicitors said that they were acting for the Club, they complained that the program was defamatory of the Club and, without prejudice to the Club's right to bring court proceedings, demanded the broadcasting of an apology. 15 There was no admission by the defendant that this letter had been received by the defendant. However, a clerk employed by the Club's solicitors gave evidence on affidavit that, in accordance with the solicitors' usual practice, a letter to the defendant had been recorded in the solicitors' mail book on 19 June 1997 as an item of outgoing mail and I am satisfied that the letter was posted and that it would have been delivered to the defendant. 16 Possible defamation proceedings arising out of the broadcasting of the program were discussed at a meeting of the Board of Directors of the Club on 25 June 1997. At a meeting of the Board on 14 August 1997 a resolution was moved and carried "that the Club take legal action for defamation against ATN seeking damages. Further, any individuals wishing to take action against ATN should consider their own position with respect to solicitors and counsel". The minutes of a meeting of the Board held on 11 September 1997 record that senior counsel had recommended "collective action by the directors". Correspondence from the Club's solicitors about the proposed proceedings was noted at meetings of the Board held on 16 October 1997 and 15 January 1998. 17 These proceedings were commenced by the Club and the seven individual plaintiffs in February 1998. 18 After the proceedings were commenced, objection was taken by the defendant's legal representatives to the pleading of some of the imputations allegedly conveyed by the program. In interlocutory proceedings reference was made to a definition of the expression "slush fund" in the Macquarie Dictionary, namely "a fund for use in campaign propaganda or the like, especially secretly or illicitly, as in bribery". 19 An amended statement of claim was filed on 22 December 1998. To this amended statement of claim the defendant filed a defence in which it traversed certain elements of the plaintiffs' causes of action and raised defences of common law and statutory qualified privilege but did not raise any defence of justification. In their reply the plaintiffs alleged, in relation to the defence of qualified privilege, that the defendant had been actuated by express malice in the publication of the program and that the conduct of the defendant in publishing the program had not been reasonable. 20 A hearing pursuant to s 7A(3) of the Defamation Act was conducted before Abadee J and a jury on 29 and 30 March 2000. The jury found that in the program the following defamatory imputations had been conveyed:- "Regarding the first Plaintiff - (Randwick Labor Club Limited) 1. the first plaintiff was a slush fund Club for the Labor Party. 2. the first plaintiff had donated $125,000 of tainted money to the Labor Party. Regarding the second Plaintiff to the eighth plaintiff - (the Directors of the Club) 1. the plaintiff was a director of Randwick Labor Club Limited whilst knowing it to be a slush fund club for the Labor Party. 2. the plaintiff's conduct as a director of the Randwick Labor Club was such as to warrant the plaintiff being reasonably suspected of being involved in the Club committing a large number of serious licensing offences. 3. the plaintiff as a Director of the Randwick Labor Club had been involved in the donation of $125,000 of tainted money to the Labor Party". 21 About the time of the hearing pursuant to s7A of the Defamation Act the solicitors for the plaintiffs sought particulars of the extent of the publication of the program. By successive letters of 28 March, 29 March and 30 March the solicitors for the defendant informed the solicitors for the plaintiffs that the program had been broadcast once by the defendant to the metropolitan area of Sydney in its 6 pm news, that the program had been broadcast once by Prime Television to regional New South Wales and the Australian Capital Territory in its 6.30 pm news and that Prime Television had also broadcast the program to the Gold Coast in Queensland. 22 On or about 2 May 2000 the Freedom of Information Unit of the New South Wales Police Service wrote to the Club, advising that an application under the Freedom of Information Act had been received from the defendant's solicitors seeking access to documents relating to any investigation into alleged breaches of the liquor licensing laws by the Club, undertaken by the Licensing Enforcement Agency in 1996 and 1997. 23 On 30 May 2000 the plaintiffs' solicitors wrote to the defendant's solicitors, asking whether the defences of qualified privilege which had been pleaded would be pursued at the further trial of the proceedings or whether they would be withdrawn. By their letter of 23 June 2000 the defendant's solicitors said "our client has no intention of withdrawing its defence of qualified privilege and we are preparing for the trial on that basis". 24 As regards the application under the Freedom of Information Act, the defendant's solicitors said:- "Given that one of the particulars of malice pleaded in the reply filed on behalf of your clients… is the falsity of the matter complained of…, the truth or falsity of the statements made in the broadcast are in issue and … the documents requested by the defendant in its freedom of information application are relevant to that issue". 25 There was further correspondence between the solicitors for the parties in August. In their letter of 3 August 2000 the defendant's solicitors set out the terms of a proposed apology. In their letter of 8 August the plaintiffs' solicitors set out an amended form of apology, in which some additions were made to the form of apology proposed by the defendant's solicitors. The plaintiffs' solicitors required that an apology in the amended form be broadcast by the defendant as part of the 6 o'clock news to the same audience as there had been for the matter complained of and also be read in open court. 26 In a letter of 9 August the defendant's solicitors, for the first time, informed the plaintiffs' solicitors that "the defendant does not intend to rely upon either of the defences of qualified privilege as pleaded". In this letter the defendant's solicitors also said that the defendant proposed to broadcast an apology in the evening news bulletin at 6 pm on Thursday 10 August. 27 In a letter of 10 August the plaintiffs' solicitors said, in regard to the withdrawal of the defences of qualified privilege, "our clients' initial reaction is outrage that your client has subjected them to the publication, the s 7A trial and insistence on pursuing a defence until trial is imminent". The plaintiffs' solicitors added:- "As to the apology our clients are most concerned that an apology could be detrimental to them. Even a full and complete apology at this time, although better than no apology, will have very little effect upon the position". 28 The plaintiffs' solicitors said that if an apology was published it should be in the same terms as were set out in an enclosure, which was itself in the same terms as the form of apology enclosed with the earlier letter of 8 August. The form of apology was in these terms: "Apology In the Seven Nightly News program of 5 June 1997 there was a segment referring to the Randwick Labor Club and Directors of the Club. In the course of that segment statements were published to which the Club and seven of its Directors took exception as being defamatory. The Club and those Directors have sued this station for damages. The Directors concerned are: Ken Murray Kevin Scott John Francis Ford Lena Bridge Peter Robert Bell Joseph Riordan Leslie Frederick Bridge The station accepts that it published defamatory statements about each of the plaintiffs. A jury has so found. We accept that each of the plaintiffs enjoyed a good and well deserved reputation at the time of publication and that they still have such reputation. We also accept that the statements were completely without foundation. We apologise unconditionally to each of the plaintiffs for having published the statements". 29 No apology was broadcast on 10 August. On 11 August the defendant's solicitors wrote a letter to the plaintiffs' solicitors in the following terms:- "No apology was broadcast last night. Our client remains willing to broadcast an apology in the form attached to your letter, but in view of your clients' expressed concerns, will forbear to do so pending some further expression of your clients' wishes". 30 On 14 August, the first day of the hearing before me, an apology was broadcast by the defendant in the news bulletin commencing at 6 pm in the evening. No recording of this apology was tendered by either side. However, oral evidence was given that the apology broadcast was in the terms requested by the plaintiffs' solicitors. An apology in those terms was read in open court by counsel for the defendant on 18 August. 31 On 15 August 2000 Prime Television, which had received a subpoena for production from the plaintiffs' solicitors, wrote a letter to the Court supplying information about the extent of the publication of the program by it. 32 The defences of qualified privilege not being pursued by the defendant, the only matter remaining is the assessment of damages. 33 In the hearing before me all of the seven individual plaintiffs gave evidence. The plaintiffs also called a fairly large number of other witnesses, who could be broadly classified as falling into two classes (1) past or present politicians or local government councillors or judges (2) other witnesses. 34 A large amount of documentary evidence was also tendered on behalf of the plaintiffs. Most of this documentary evidence was tendered for the purpose of establishing the good, and indeed high, reputation of each of the plaintiffs at the time the program was broadcast. Counsel for the defendant stated that it was accepted by the defendant that all of the plaintiffs had been persons of good reputation at the time the program was broadcast. 35 The defendant did not call any evidence or otherwise go into evidence. 36 I have taken into account all of the evidence which was adduced at the hearing, whether or not it is referred to in the necessarily condensed summary of the evidence I will now give.