Muriel and Gary Campbell are members of an Aboriginal family living in Bermagui, NSW. In October 2006 racist graffiti directed towards Aboriginals was painted on a bridge in the area and around that time there was a fight on the bridge between some non-Aboriginal youths and the Campbell’s children. On 8 October 2006, the Campbell’s home was attacked by a large group of non-Aboriginal youths. The three children of Mr and Mrs Campbell were charged with assault and later, a number of non-Aboriginal youths were also charged.
The plaintiff was the Mayor of Bega Valley Shire, home to the Bermagui scuffles. The defendant, a Franciscan sister and local social worker who provided assistance to the Campbells and others.
On 9 October 2006 a meeting was held to discuss the attack on the Campbells’ home. The plaintiff and the Deputy Mayor attended and undertook to arrange for Council officers to remove the graffiti from the bridge. They agreed to speak to a senior police officer about police attitudes and conduct, and also to speak to the local radio station with a view to having a broadcast of a balanced account of the social tensions. The graffiti was removed within a week or so.
On 22 October 2006, the defendant met Mr and Mrs Campbell, who were frustrated by what they believed was a lack of action by the plaintiff. The defendant prepared a letter for them to send to the Ombudsman for New South Wales. It asked that the Ombudsman look into the matter. It stated that they felt they had been discriminated against by the plaintiff and local police, who promised to look into the matter but, as they alleged, took no further action.
On 26 October 2006, the plaintiff got a copy of the letter to the Ombudsman from the local newspaper and became very upset. He rang Mrs Campbell and promised to visit her and her husband to discuss the letter. A meeting took place that afternoon in a laneway outside the Campbells’ home. What happened during the phone conversation and at the meeting were critical matters of dispute at the trial.
Those exchanges were the subject of an email from the defendant on 7 February 2009, which was the subject of the plaintiff’s defamation claim. The defendant published a letter that she had sent to the Premier of NSW of around that date, which related to the plaintiff’s conduct and especially how he handled the Campbells’ request to investigate these racial attacks. The defendant sent copies of this letter to a journalist with Four Corners, the Sydney Morning Herald and to 17 members of an action group known as the Committee for Reconciliation and Justice.
The relevant passages of the letter said this:
“On the 26th October 2006 I was asked by the Campbells to attend their home as a witness to a very overpowering and bullying attitude by phone of the Mayor of Bega Valley Shire Council, Mr Tony Allen, who stated that he would be coming to their home within 10 minutes to speak to them regarding their letter to the Ombudsman. Mrs Campbell then asked that the Mayor delay his visit until later in the day until her husband was home from school, however the Mayor refused to delay his visit and proceeded to come to their residence.
Mrs Campbell was feeling extremely intimidated by his attitude and immediately contacted me to attend as her support person and to witness the event. She then telephoned her husband at Bermagui Primary School, where he is the Aboriginal Liaison Officer, and he came home due to the urgency of the situation.
Mr Allen and his Deputy, Mrs Jeanette Neilson arrived as stated and immediately requested that I leave. The Campbells indicated that I was there at their request and therefore I remained. The Mayor was exceedingly aggressive and controlling in his attitude and basically wanted the Campbells to rescind their complaints to the Minister and Ombudsman and also to ensure that this would not appear in the media. Later I was told by a local newspaper that they were threatened with legal action by the Mayor should this incident be reported. I believe this threat was made in order to protect tourism and property price interests. Therefore no in-depth media release was ever published and very few people in the community were made aware of this racial attack.”
The plaintiff asserted that the letter conveyed the following defamatory imputations:
(a) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor and that he bullied a woman.
(b) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he attended a woman’s home against her express wishes.
(c) The plaintiff intimidated a woman by acting in a bullying and overpowering manner over the phone.
(d) The plaintiff was aggressive towards a woman in her home.
(g) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he threatened legal action against a newspaper if it reported a complaint about him.
At the trial, the defendant asserted defences of justification, fair comment, common law qualified privilege and honest opinion. The trial was before a judge alone and Colefax DCJ found that imputations (a), (b), (c) and (d) arose and were defamatory and that imputation (g) did not arise. He also rejected the defendant’s defences. The plaintiff won $65,000. The defendant appealed.
At the trial there was dispute about whether or not the plaintiff and the Deputy Mayor had carried out the tasks that they said they would from the October meeting. The Trial Judge
determined that in the plaintiff’s favour and found that each of the steps promised were taken. The Trial Judge also found that the plaintiff did not engage in any threatening, abusive or aggressive behaviour either verbally or violently towards Mrs Campbell in the meeting. However the defendant challenged the decision on the basis that the Judge said nothing about the plaintiff’s conduct in the phone call leading up to the meeting. Mrs Campbell had given evidence about the phone call as follows:
“Well I got a phone call from Mr Allen and he asked me if he could come up to my house to have a meeting with me and Gary and I explained to him that I was at the house on my own. I told him I didn’t want him to come there because I was just still terrified about what happened and I specifically told him I did not want him to come, I was at the house on my own. But his reply to me on the phone was ‘I’m sorry Muriel, but I am on my way’ and then he hung up. I started to panic.”
The issue of the truth of imputations (a) and (c) meant that the competing accounts of the telephone conversation had to be resolved. The Trial Judge did not do so and Nicholas JA (with whom Beazley JA and McColl JA agreed), concluded that this was a critical error by the Trial Judge.
In terms of qualified privilege, the defendant argued that the defences ought not to have been rejected. She especially argued that she had a duty to publish the letter and that the Committee representatives and media had an interest in receiving the letter. On appeal, it was held that sending the letter to the Committee for Reconciliation and Justice was published on an occasion of qualified privilege because the Committee members had an interest in receiving the information and the defendant had a duty in publishing to them (68). But it was a different question as to whether there was a duty to send the letters to the Sydney Morning Herald and Four Corners. The Trial Judge had found that there was such a duty, but the Court of Appeal disagreed.
The matters that were relevant were that the defendant sent the letter to the media unsolicited and it was sent to unidentified people of uncertain number, regardless of any special interest which they may have had (72). Justice Nicholas said this at (73):
“In other words, the publications were made in the hope that they, in turn, would generate the publication of reports to the public at large by a newspaper and television which would encourage the relevant authorities to act upon, and remedy, the complaints. However, the fact that the subject matter was of public interest does not establish an interest or duty in the appellant to publish to journalists or programme producers matter which included defamatory statements concerning the respondent. There was no interest to be protected by sending the letter to them; they were not persons with an interest or duty to investigate or remedy the matter of which complaint was made. Furthermore, there was no duty or interest in the recipients to republish to the world at large the defamatory matter included in it. I reject the appellants submissions on this issue.”
So no qualified privilege for leaking stories to the media in the hope that they might run with them. Interestingly, no mention was made in the trial or on appeal, as to whether the defendant could rely on qualified privilege for the publication of government or political matter.
Regardless, in terms of malice, while there was no explanation by the defendant of the delay between the events in October 2006 and the letter to the media and Committee in February 2009, the finding that she was malicious was also premised on the acceptance of the plaintiff’s version of events of the meeting in the laneway. Because the Trial Judge undertook no analysis and made no finding as to the evidence of the plaintiff’s conduct in the telephone conversation, this also infected the finding of malice and therefore the Court of Appeal also set aside that finding. So, the defence of qualified privilege failed for writing to the media.
In all, the parties are now headed back for a re-trial. The District Court will have another go at determining whether imputations in (a) and (c) are true and then if the defendant fails to establish the truth, the assessment of damages.
Then there was the sleeping giant at the end of the judgment… Each party bears their own costs of the appeal. On it goes.