CAVANAGH v N.T. NEWS SERVICES LTD and PERRON

Supreme Court of the Northern Territory of Australia Rice J.
2 to 12 July, 9 to 13 December, 23 December 1985 and
26 May 1989 at Darwin

DEFAMATION - claim and counterclaim - plaintiff union official - defendants, newspaper and Government Treasurer - defences of fair comment and qualified privilege and statutory fair comment - claim dismissed - damages for slander on counter-claim - foreseeable potential of wice dissemination by radio journalist.

Cases followed:
Campbell v Associated Newspapers (1948) 48 SR (NSW) 301
at 304
Hawke v Tamworth Newspapers Co. Limited (1983) 1 NSWLR 699 at 704
John Fairfax & Sons Ltd v Hook & Anor (1983) 47 ALR 477 at 481
Orr v Isles (1965) 83 WN (Pt.I) (NSW) 303 at 320
Pryke & Ors v Advertiser Newspaper Limited & Ors (1984)
37 SASR 175 at 191

Statutes:
Defamation Act s.6, 6A, 8 and 9

Counsel for the Plaintiff: Solicitor for the Plaintiff:
Counsel for the 1st Defendant: Solicitor for the 1st Defendant:
Counsel for the 2nd Defendant: Solicitor for the 2nd Defendant:

J.B. Waters
Waters James O'Neil
J.J. Garnsey Ward Keller

T.I. Pauling Q.C. and T. Riley David Winter

ric880013

,.

THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 536 of 1982

BETWEEN:

BARRYMORE FREDERICK JAMES CAVANAGH

Plaintiff

AND:

NORTHERN TERRITORY NEWS SERVICES LIMITED
First Defendant

AND:
MARSHALL PERRON

Second Defendant

CORAM: Rice J.

REASONS FOR JUDGMENT
(delivered 26 May, 1989)

This is an action involving a claim against both defendants and a counter-claim by the second defendant against the plaintiff for damages for defamation.	At all material times the plaintiff was an Industrial Officer employed by the Northern Territory Branch of the
Admini trative and Clerical Officers' Association ("ACOA"), the first defendant was the publisher of a newspaper known as "The Northern Territory News" ("N.T. News") and the second defendant was Treasurer in the Government of the Northern Territory of Australia.

In order, more readily, to appreciate the nature of the allegations of defamation, it is necessary to set out various documents in the order in which they emerged.

First of all, there was a document under the hand of the plaintiff dated 25 October 1982 entitled "ACOA Newsletter" (Exhibit PB):-

"PROPOSED N.T. SUPERANNUATION SCHEME MEETING OF MEMBERS
Date:	Wednesday, 3rd November Time: 12.15 pm Place: Auditorium, Darwin Workers Club Complex.
Please enter from Austin Lane

It is the stated intention of the Northern Territory Government that its proposed Superannuation Scheme for Northern Territory Public Servants will be passed during the November sittings of the Legislative Assembly.

The Association is now in possession of a final draft Bill and attached to this circular is as much relevant information as the association is able to gather with regard, both to the content of the Bill and its comparison with the Commonwealth Superannuation Scheme, and, the background which makes it, apparently, necessary for the N.T. Government to introduce its own Superannuation Scheme, notwithstanding the guarantees which it and the Fraser government, as well as the various Commonwealth Departments, gave at the time of self-government.

The association is aware that the Northern Territory Government is anxious to secure a firm Commonwealth commitment in the form of enabling legislation to allow them to introduce their own Superannuation Scheme as a matter of urgency.	The Commonwealth Government has not yet introduced legislation which the Department of Finance officers indicate is not a necessary condition precedent to the establishment of the N.T. Scheme.	It is quite plain that the viability of the Northern Territory Scheme will be substantially influenced by the willingness of the Commonwealth to set transfer values in respect of past service and determine arrangements

for transference of superannuation fund investment trust contributors funds satisfactory to the Northern Territory Government.

It appears that, in simple terms, enabling legislation will provide for transfers of contributors on the termination of membership of a commonwealth fund of persons who take up membership of another superannuation scheme run by a statutory authority.	This arrangement would be similar to that for which Commonwealth legislation has been introduced in relation to T.A.A.

The question to be determined by ACOA members is if the association should, and if practical the A.C.T.U., resist the passage of legislation which will compulsory (sic) transfer members from the Commonwealth Superannuation scheme to the Northern Territory scheme. Perhaps it is sufficient to press merely for honoring of the Prime Ministers commitment that members transferred to the Northern Territory Public Service and/or authorities will be entitled to continue membership of the Commonwealth Superannuation Scheme.	The Bradley Committee enquiring into Australia Post, in its references to the A.P. Superannuation commitment recommended the establishment of a separate scheme for Australia Post employees but conceded an entitlement for existing employees to stay in the Commonwealth Superannuation Scheme.
In order to provide background as well as comparisons of the two schemes the attachment 1 to this circular is a summary of evidence given by the Department of Finance to the Senate Standing Committee on Finance and Government Operations on the 2nd July 1982.

The Committee, whose Chairman is Senator Rae discussed several aspects of the Northern Territory Authorities.
Mr Searson and Ms Fenwick in reply to questions stated;

'If the current actual reviews for those authorities paying 15% show they should have been paying 20%, the arrears plus interest will have to be paid by (sic.) the Commonwealth - the mechanism of payment is not settled yet;	it could be by lump sum, alternatively by an increase in contribution rate.'

In response to questioning in the Legislative Assembly, during the October sittings, the Treasurer admitted that the Northern Territory Government has not forwarded any employer contribution to the Commonwealth since the establishment of self-government in 1978.	Further, there has not been any provision made to hold these

monies in trust.	From this, it is reasonable to assume that the-NOrthern Territory Gove:i:1'fftlent could face a large employer contribution requirement for its employees who are members of the Commonwealth Superannuation Scheme.

This failure to adequately and responsibly provide for its liability for N.T. Government employees appears to be the basic motivating force behind the N.T. Government's desire to go back on its promises to its employees at the time of self-government.	That is, that they would be eligible to remain in the Commonwealth Superannuation Scheme.

There are a number of attachments to this circular which deal with the sections of the proposed N.T. Scheme which have been of concern to members throughout the 12 months that negotiations have been taking place.
Attachment 2 sets out the exact wording of division 8 - Lump Sum Benefits, of the Act (Sections 72 and 73).
The schedules 11 & 12 referred to in the sections comprise part of the attachment.
Attachment 3 is a comparison of lump sum payments which would apply to employees on certain N.T. salary levels, under the proposed Northern Territory Scheme, the existing Queensland scheme and existing New South Wales scheme.	Members will note that Northern Territory Government employees run last in each comparison.
Other attachments are;

Attachment 4 - The case in favour of acceptance prepared by ACOA Executive Member Charlie Jeffries
Attachment 5 - Superannuation Board Attachment 6 - Investment of Trust Fund
Attachment 7 - Review of Decisions of the Board Attachment 8 - Preservation of Benefits

(sgd.) Barry Cavanagh Industrial Officer"

(Attachments not reproduced.)

Then followed a broadcast over ABC Radio at 5-15
and again at ·6-25 a.m. and 7-25 a.m. on 1 November 1982, which was based on a transcript (Exhibit Pl0) the contents of which were:-

"Members of the Administrative and Clerical Officers' Association in DARWIN will meet on Wednesday to discuss the proposed superannuation scheme for Territory Public Servants.

The Government intends to pass the necessary legislation during the November sittings of the Legislative Assembly, but the A.C.O.A. executive is bitterly opposed to the scheme.

The union's Industrial Officer, Mr. Barry CAVANAGH, said last night that the only thing he would be prepared to accept was a situation whereby the Territory scheme would be available to new members of the Territory Public Service, and anybody who might wish to switch from the Australian Government scheme.

Mr. CAVANAGH said the Government had been dishonest about its intentions, and he accµsed it of having been irresponsible in not meeting its commitments to the Commonwealth Superannuation Scheme.

He claimed the Territory Government had failed to make adequate employer contributions to the Commonwealth fund, and now faced a huge backlog of millions of dollars.

Mr. CAVANAGH said that the Government might be required to make large lump sum payments to the Commonwealth fund, but it no longer had the money.

He said the Treasurer, Mr. PERRON, had admitted in the Legislative Assembly that the Territory had not forward (sic) any employer contribution since the establishment of self-government in 1978, nor has there been any provision made to hold these moneys in trust."

This brought a response in the form of the second defendant's press release (Exhibit Pl) dated 1 November 1982· which was in these terms:-

"Press release by the Treasurer, Mr Marshall Perron

The Territory Government owed nothing to Commonwealth authorities in respect of superannuation for Territory public servants, the Treasurer, Mr Marshall Perron, said today.

He said gossip being spread by the Administrative and Clerical Officers Association (ACOA) about alleged Territory debts was malicious and spiteful.

Mr Perron said he could not understand the reasons for a deceitful outburst by an ACOA spokesman, Mr Barry Cavenagh (sic.) on the matter.

He assumed Mr Cavenagh was responding to current ACOA political pressures and splits within his own Association, and he was trying to re-assert himself with his members.

'All he is creating is unwarranted fear among his members that their superannuation contributions are somehow at risk,' the Treasurer said.
'Nothing could be further from the truth.

'Put simply, the Territory is currently negotiating with the Commonwealth to take over administration of superannuation funds for Territory public servants.

'Employer contributions by some statutory authorities are being retained by the Territory as those negotiations draw to a conclusion, and with the complete agreement of the Commonwealth.

'Mr. Cavenagh's statement that the Territory is faced with a huge backlog of payments involving millions of dollars is a bare-faced lie.'

Mr Perron said Mr Cavenagh had consistently displayed an unwillingness to deal in the truth in the matter of superannuation payments.

'This man gives poor service to those members who pay him his salary,' he said.

The Treasurer said the facts were:

That the territory has no obligation to make employer superannuation contributions to the Commonwealth in respect of Territory public servants, and has had no obligation to make such payments in the past. That it will not take on such an obligation until a separate Territory superannuation scheme comes into existence. It does not owe the Commonwealth Government, the Commonwealth superannuation fund or anybody else one single cent in respect of superannuation for Territory public servants. The Commonwealth Government is continuing to meet employer contributions in respect of retired Territory public servants and will continue to do so until satisfactory funding arrangements are agreed between the two Governments.

Mr Perron said Mr Cavenagh's actions were those of a saboteur who was bent on destroying inter-Government negotiations for his own personal benefit.

'Unfortunately, in doing so he is spreading uncertainty and mistrust among his members,' he said.

'They are entitled to seek from him an explanation for this irresponsible attitude.'
ENDS"

On the same day the first defendant, on the back page of the N.T. News in the section headed, "Late News" published the following:-

n
SUPER GOSSIP 'SPITEFUL' SAYS PERRON

Treasurer, Mr Marshall Perron, said today the NT Government owed nothing to Commonwealth authorities in respect of superannuation for Territory public servants. He said gossip being spread by the Administrative and Clerical Officers Association about alleged Territory debts was malicious and spiteful.	Mr Perron said he could not understand the reasons for a deceitful outburst by an ACOA spokesman, Mr Barry Cavenagh, on the matter.	'All he is creating is unwarranted fear among his members that their superannuation contributions are

somehow at risk.	Nothing could be further from the truth.'	Mr Perron said the Territory was currently negotiating with the Commonwealth to take over administration of superannuation funds for Territory public servants.	'Employer contributions by some statutory authorities are being retained by the Territory as those negotiations draw to a conclusion, and with the complete agreement of the Commonwealth.' Mr. Perron said Mr. Cavenagh's actions were those of a saboteur who was bent on destroying inter-government negotiations for his own personal Denefit. 'Unfortunately in doing so he is spreading uncertainty and mistrust among his members.	They are entitled to seek from him an explanation for his irresponsible attitude," Mr Perron said."

The issues arising between the respective parties have given rise to rather long and complicated pleadings and particulars which, in some instances, were amended during the course of the trial.	At the risk of being repetitious, therefore, I set forth at some length the main allegations and the particulars sought to support them, as ultimately amended, along with the general effect of the respective defences.

As against the first defendant, the plaintiff claims that the item published by it in the N.T. News of 1 November 1982 was defamatory of the plaintiff and that the words in their natural and ordinary meaning contained the following imputations:-

"(i)	That the plaintiff was spreading lies or loose and unreliable information for reasons of malice or spite towards the Northern Territory Government or its Ministers.

That the plaintiff was creating unwarranted fear and concern amongst members of the Administrative and Clerical Officers' Association in the Northern Territory about their own welfare.

That the plaintiff was acting as a 'saboteur' intent upon ruining for improper motives, a scheme which would benefit members of the Administrative and Clerical Officers' Association in the Northern Territory.

That the plaintiff was wilfully spreading uncertainty and mistrust amongst members of the Administrative and Clerical Officers' Association for improper motives.
That the plaintiff was an irresponsible person.

That the plaintiff was motivated in making remarks attributed to him for reasons of personal gain or political advancement and that in doing so, he was acting contrary to the proper interests of his employers.

That the plaintiff was a liar and a dishonest person.

That the plaintiff was unfit to hold the position that he presently holds within the Administrative and Clerical Officers' Association.

{ix)	That the plaintiff was not fit to occupy a position of responsibility within the Union movement at large.

(x)	That the plaintiff was an unscrupulous and reckless person who would irresponsibly sacrifice the interests of his employers for reasons of his own personal gain."

As against the second defendant, the plaintiff claims that the press release was published by him on
1 November 1982 to the first defendant, to representatives of the Australian Broadcasting Commission, N.T.D. Eight and

other newspapers circulating in the Northern Territory, resulting in parts of the release being circulated throughout the Northern Territory, a consequence the second defendant well knew would occur.

It is alleged that the press release was substantially reprinted by the first defendant in the N.T. News of 1 November 1982.

In addition, it claims that the press release published by the second defendant contained the imputation that the plaintiff, in publishing a prior statement, was prompted not by the proper motive of furthering the interests of his employers and the members of his association, but by improper motives of publicity-seeking and grand-standing associated with a desire to gain favour in the furtherance of his own industrial or political ambitions;		that the plaintiff is a liar and that he is not a worthwhile employee and should therefore be dismissed from his job;	that the press release imputes grossly improper motives to the plaintiff and an unfitness to hold a position of trust.

The plaintiff further alleges that in each of the publications he is identified by name and by employment and that they were calculated to disparage him in his employment

and greatly injure his reputation as a union official. Then follows the customary claim for damages against each defendant for defamation.

The first defendant, for its part, admits the publication but sets up a statutory defence of privilege under s.6 of the Defamation Act by pleading in paragraph 3:-

"The words complained of constitute a notice of report issued by the second defendant in his capacity as Treasurer of the Northern Territory for or on behalf of the Department of the Treasury for the information of the public and the said words were published in the Northern Territory News (which was and is a newspaper within the meaning of the Defamation Act) at the second defendant's request.	In the circumstances the occasion of publication was privileged pursuant to s.6 of the Defamation Act."

(The plaintiff, in his reply, denies that the publication complained of is a fair and accurate report or notice for the purpose of Section 6 of the Defamation Act and in particular that the press release of the second defendant was a matter of public concern or for the public benefit.)

In addition, the first defendant relies upon a defence of fair comment on a matter of public interest; and, by paragraph 4 of its Amended Defence, pleads:-

..

"If the words complained of have the imputations alleged (which is denied) then the said words are fair comment on a matter of public interest, namely:

The capacity of the Northern Territory Government in general and the Treasurer in particular to manage a superannuation fund;

The ability of the Northern Territory Government in general and the Treasurer in particular to manage a superannuation fund;

(cl Whether or not the Northern Territory Government had misappropriated funds which should have been set aside for superannuation purposes;

Whether or not the Northern Territory Government had any commitment to make financial contributions to the Commonwealth Superannuation Scheme in respect of Territory Public Servants;

Whether or not the Northern Territory Government had the funds to meet any commitments to the Commonwealth Superannuation Scheme in respect of Territory Public Servants;

( f)		Whether the Northern Territory Government was honest in its dealings with Northern Territory Public Servants;

Whether or not the accrued or potential superannuation benefits of Territory Public Servants were at risk;

Whether or not the Northern Territory Public Service could have confidence in the Northern Territory Government as the largest single employer in the Territory in the management of funds administered by the Government;

Whether or not the future security of Northern Territory Public Servants was imperilled by the financial arrangements entered into by the Northern Territory Government with the Commonwealth;
What arrangements existed between the Northern Territory and the Commonwealth Government as to funding and transfer of superannuation funds;

Whether the second-named defendant was competent and/or honest in the discharge of his functions as Treasurer;

Whether funds belonging to potential superannuees which should have been in trust had been wrongly applied and dissipated by the second-named defendant and/or the Northern Territory Government in an unauthorised way;

Whether the Northern Territory Government in its dealing with Northern Territory Public Servants on the matter of superannuation was dishonest;

Generally the competence of the Northern Territory Government and in particular the Treasurer to manage the financial affairs of the Territory;

The financial administration of the Northern Territory.

Particulars
The facts upon which the fair comments are based are as follows:

The plaintiff is a spokesman for and a salaried officer of the Administrative and Clerical Officers Association (ACOA);

At all material times the plaintiff had been an active participant in discussions and negotiations between the Public Service Commissioner and his officers, the Under-Treasurer and his officers and representatives of unions and associations whose members were eligible to participate in a proposed scheme of superannuation for Northern Territory Public Servants, the ACOA being one such association and the plaintiff being one of its representatives;

The plaintiff by reason of his participation in the discussions and negotiations referred to above and by reason of statements made on behalf of the Northern Territory Government in March and July 1982 and the ACOA in February 1982, knew the facts concerning the financial arrangements between the Northern Territory Government and the Commonwealth Government regarding superannuation for Territory Public Servants;

It was and is a fact that the Northern Territory Government is not liable and has not been liable since selfgovernment to make any payments to the Commonwealth Superannuation Scheme in respect of employees of the Northern Territory Public Service;

It was and is a fact that some statutory authorities created under Northern Territory law are required to contribute as employers towards future superannuation benefits of their employees and such funds are as part of the financial arrangement between the two governments held in a Trust Fund called 'Statutory Authorities Employers Contribution towards Superannuation':

At the time of publication of the matters referred to in (i) and (j} (below) there were political pressures within the ACOA concerning rival organisations seeking to represent administrative and clerical officers in the Northern Territory Public Service such that the ACOA was actively dissuading its members from leaving the ACOA and joining such rival organisation.	The plaintiff had an interest as industrial officer of the ACOA in being prominent and forceful in negotiations over superannuation and in public statements made with regard thereto so as to persuade members of the ACOA and potential members of the ACOA that that Association was best able to represent the interests of its members and Northern Territory Public Servants in general.

At the time of publication of the matters referred to in (i) and (j) (below) there had been splits in the ACOA involving the former Branch Secretary, Mr. Turnbull, and other executive officers of the union and such splits threatened the policy of the ACOA that that Association should have the sole coverage of administrative and clerical officers in the Northern Territory Public Service.

(ga) The plaintiff had an interest in carrying out the ACOA policy referred to in (f) above and of re­ asserting himself to be the most effective representative or spokesman for the ACOA in the matter of superannuation and by doing so could dissuade members from defecting to such rival organisations.

The plaintiff was at all material times able to ask members of the Northern Territory Government and/or members of the group described in paragraph (b) for explanation if any of the financial and other arrangements between the two governments in respect of superannuation caused him concern:

Without seeking any explanation the plaintiff on or before l November 1982 published to a journalist employed by the Australian Broadcasting Commission

a newsletter (further identified in (j) below) and further published to the said journalist the following words or words to the following effect:

'Members of the ACOA will meet in Darwin on Wednesday to discuss the proposed superannuation scheme for Territory public servants.	The Government intends to pass the necessary legislation during the November sitting of the Assembly, but the ACOA executive is bitterly opposed to the scheme.
The Territory scheme should be available to new members of the Territory public service, and anybody who might wish to switch from the Australian Government scheme.	The government has been dishonest about its intentions, and has been irresponsible in not meeting its commitments to the Commonwealth superannuation scheme. The Territory government has failed to make adequate employer contributions to the Commonwealth fund, and now faces a huge backlog of millions of dollars.		The government might be required to make large lump sum payments to the Commonwealth fund, but it no longer has the money.		The Treasurer Mr. Perron, has admitted in the Assembly that the Territory has not forwarded any employer contributions since the establishment of self-Government in 1978.
Nor has there been any provisions made to hold these monies in trust."

These words or words to a similar effect were published to the said journalist with the intention that they be published throughout the Northern Territory by radio and they were so broadcast on the ABC News at 7.25 a.m. on 1 November, 1982.

The Newsletter referred to in (b) was dated 25 October, 1982 and signed by the plaintiff and included the following statements:

'In response to questioning in the Legislative Assembly, during the October sittings, the Treasurer admitted that the Northern Territory Government has not forwarded any employer contribution to the Commonwealth since the establishment of self-government in 1978.
Further, there has not been any provision made to hold these monies in trust.	From this, it is reasonable to assume that the Northern Territory Government could face a large employer contribution requirement for its

employees who are members of the Commonwealth Superannuation Scheme.

This failure to adequately and responsibly provide for its liability for N.T. Government employees appears to be the basic motivating force behind the N.T. Government's desire to go back on its promises to its employees at the time of self-government.	That is, that they would be eligible to remain in the Commonwealth Superannuation Scheme.'

The newsletter was widely published to members of the ACOA throughout the Territory.

The matter published as alleged was false in the following material particulars:

(i}	It was not true that 'the Territory government had failed to make adequate employer contributions to the Commonwealth fund'.

(ii}	It was not true that the Territory government 'now faced a huge backlog of millions of dollars'.

(iii}	It was not true that 'the government might be required to make large lump sum payments to the Commonwealth fund'.

(iv)	It was not true that (the Territory government} 'no longer had the money'.
(v}	It was not true that the Treasurer,
Mr. Perron, had admitted in the Assembly that the Territory had not forwarded any employer contributions to the Commonwealth Superannuation Fund since the establishment of self-government.

(vi}	It was not true that there had been 'no provision made to hold these monies in trust'.
At all material times the facts were:
the Territory Government owed nothing to Commonwealth Authorities in respect of superannuation for Territory Public Servants.

The plaintiff had published the material set out in (i) and (j) above alleging (inter alia) that the Territory was in debt to the Commonwealth Superannuation fund involving 'a huge backlog of millions of dollars'.
The material published by the plaintiff was capable of creating fear among members of the ACOA that their superannuation entitlements were at risk.

The Territory Government was negotiating with the Commonwealth to take over administration of superannuation funds for Territory Public Servants.

Employer contributions by some statutory authorities were being retained by the Territory in Trust with the complete agreement of the Commonwealth.

The statement that the Territory was faced with a huge backlog of payments involving millions of dollars was false.

The Territory had no obligation to make employer superannuation contributions to the Commonwealth in respect of Territory Public Servants, and had no obligation to make such payments in the past.

The Territory would not be obliged to set aside employer contributions for Territory Public Servants until a Territory superannuation scheme came into existence.

The Territory did not owe the Commonwealth government, the Commonwealth Superannuation Fund or anybody else one cent in respect of employer contributions for superannuation for Territory Public Servants.

The Commonwealth government was continuing to meet superannuation obligations in respect of retired Territory Public Servants and would continue to do so until satisfactory funding arrangements were agreed between the two governments.

The material the plaintiff published was likely to spread uncertainty and mistrust among members of the ACOA.

•

The allegations made by the plaintiff were likely to cause serious alarm in the Northern Territory Community concerning the financial administration of the Territory by the Northern Territory Government."

A further defence, under the Defamation Act, is set up by paragraph 5 of the Amended Defence which is as follows:-

"Insofar as the said words refer or were understood to refer to the plaintiff then he being a person who takes part in public affairs they are fair comment within the meaning of s.6(A) (sic.) of the Defamation Act upon his public conduct and his character so far as his character appears from that conduct.
Particulars

The defendant relies on particulars set out in respect of paragraph 4 of this Defence."
(The relevant section is 6A.)

By paragraph 6 of the Amended Defence, a plea of qualified privilege is set up in the following terms:-

"Prior to the publication of the words complained of the plaintiff had published the words set out in paragraphs 4(i) and 4(j) of this Defence (or words to a similar effect) and the said words had been widely published throughout the Northern Territory on the ABC News and in the newsletter delivered to the members of the ACOA as alleged in paragraph 4 hereof;	and the second defendant in his capacity as Treasurer of the Northern Territory issued, in response to the aforesaid publications the Press release more particularly described in the second paragraph 6 of the Statement of Claim and requested the first defendant to publish the same.	In the circumstances the first defendant had a social or moral duty to publish the substance of the said Press release and the public had a corresponding interest in reading

the said matter and it was in the public interest that the words should be published in the first defendant's said newspaper (which at all material times was the only daily newspaper circulating in the Northern Territory). By reason of the matters aforesaid the occasion of the said publication was privileged."

By his defence, the second defendant, after making certain formal admissions,	denies the alleged defamation of the plaintiff and all of the imputations allegedly contained in the item in the N.T. News of 1 November 1982.		He admits that he published the press release to the first defendant in the terms alleged, but does not admit that it was substantially reprinted by the first defendant.	He admits publishing to the first defendant the press release but denies each and every remaining allegation in the Statement of Claim.

By paragraphs 9 and 10 of the Amended Defence, the second defendant sets up a defence of fair comment upon matters of public interest in identical terms to those pleaded by the first defendant in paragraph 4 of its Defence except for the prefatory words, namely:-

"The said words complained of in paragraphs 4 and 6 of the Statement of Claim are fair comment upon matters of public interest namely:-"

In addition, the second defendant alleges by paragraph 11 of the Amended Defence that the plaintiff, then

..

being a person who takes part in public affairs, the words complained of in the Statement of Claim insofar as they refer to him, are fair comment within the meaning of s.6A of the Defamation Act upon his public conduct and his  character insofar as his character appears from that conduct.	The particulars in support of that defence are
those set out in paragraph 10 which coincide with those also given by the first defendant in support of its plea of fair comment.	(supra.)

The second defendant also raises the defence of qualified privilege by paragraph 13 of the Amended Defence which is as follows:-

"The second-named defendant was at all material times the Treasurer in the Northern Territory Government.
Prior to the publication of the matters referred to in paragraphs 4 and 6 of the Statement of Claim the plaintiff had published of and concerning the second defendant the matters set out in paragraphs lO(i) and lO(j) of this defence.	The said matters published by the plaintiff were false and seriously reflected upon the financial capacity of the Northern Territory Government and of the second defendant in such a way that the second defendant was under an obligation to make an immediate and convincing public refutation and, in view of the matters referred to in paragraph 10, to suggest why the plaintiff might be concerned to make such false allegations, and the people of the Northern Territory had an interest in being informed of the matters set out in paragraph 6 of the Statement of Claim.
By reason of the matters aforesaid the occasion of the said publication was privileged.

Particulars

Without limiting the matters alleged in paragraph 13 the second defendant repeats the matters alleged in paragraphs 9 and 10 of this defence."

The second defendant then sets up a counter-claim by paragraphs 15 to 24, inclusive, which are as follows:-

n
The second defendant was at all material times designated as Treasurer in the government of the Northern Territory of Australia.	(Admitted by plaintiff.)

In their natural and ordinary meaning in matters pertaining to the financial administration of the Northern Territory references to 'the government' or 'the Northern Territory Government' were and are understood to refer to a small number of persons including the second defendant.	(Denied by plaintiff.)

The plaintiff as industrial officer of the ACOA published on or about 25 October 1982 a newsletter to members of the ACOA in respect of a proposed superannuation scheme for Northern Territory Public Servants.	(Denied by plaintiff.)

The publication of the Newsletter was throughout the Northern Territory and was of and concerning the second defendant and contained the following:

'In response to questioning in the Legislative Assembly, during the October sittings, the Treasurer admitted that the Northern Territory Government has not forwarded any employer contribution to the Commonwealth since the establishment of self-government in 1978.
Further, there has not been any provision made to hold these monies in trust.	From this, it is reasonable to assume that the Porthern Territory Government could face a large employer contribution requirement for its employees who are members of the Commonwealth Superannuation Scheme.

This failure to adequately and responsibly provide for its liability for N.T. Government employees appears to be the basic motivating

force behind the N.T. Government's desire to go back on its promises to its employees at the time of self-government.	That is, that they would be eligible to remain in the Commonwealth Superannuation Scheme."

(Publication of these words is admitted by plaintiff but the rest of the allegations are denied. Alternatively, the plaintiff sets up a statutory defence of fair comment under s.6A of the Defamation Act, along with paragraphs 10 and 11, namely:-

"10.	Further, if such publication did occur (which is denied) such publication occurred in circumstances where the publication was privileged, as the words complained of were uttered honestly as fair comment without malice on a matter of public interest, namely the future of the Northern Territory Public Servants' Superannuation Funds and whether or not such superannuation funds or benefits to Territory Public Servants were at risk by a person in discharge of this (sic.) public duty as an Officer of A.C.O.A. in a matter where that person's own interest is concerned.

11.	The Plaintiff further claims privilege for any statement made and repeats in respect thereof the matters set out in paragraph 10 hereof.")

"19.		On or before 1 November 1982 the plaintiff published the newsletter to a radio journalist at the Australian Broadcasting Commission and with the intent that they should be broadcast on the radio said the following words or words to the effect of:

'Members of the ACOA will meet in Darwin on Wednesday to discuss the proposed superannuation scheme for Territory public servants.	The Government intends to pass the necessary legislation during the November

sitting of the Assembly, but the ACOA executive is bitterly opposed to the scheme. The union's industrial officer, Mr. Barry Cavanagh, said the Territory scheme should be available to new members of the Territory public service, and anybody who might wish to switch from the Australian Government scheme. Mr. Cavanagh said the government had been dishonest about its intentions, and he accused it of being irresponsible in not meeting its commitments to the Commonwealth superannuation scheme.	He claimed the Territory government had failed to make adequate employer contributions to the Commonwealth fund, and now faced a huge backlog of millions of dollars.		Mr. Cavanagh said the government might be required to make large lump sum payments to the Commonwealth fund, but it no longer had the money.	He said the Treasurer Mr. Perron, had admitted in the Assembly that the Territory had not forwarded any employer contributions since the establishment of
self-government in 1978.	Nor has there been any provision made to hold these monies in trust.'	(Denied by plaintiff.)

The said words were on 1 November 1982 broadcast on the ABC News throughout the Northern Territory. (Not admitted by plaintiff.)

The matters complained of and set out in paragraphs
18 and 19 hereof were defamatory of the second defendant and the words in their natural and ordinary meaning contained the following imputations:

That the second defendant was under an obligation to forward employer contributions to the Commonwealth Superannuation Fund and wilfully and/or irresponsibly failed to honour that obligation;

That the second defendant was bound to set aside monies in trust and had wilfully and/or irresponsibly failed to do so;

That the second defendant was irresponsible in the discharge of his duties as Treasurer;

That in order to conceal alleged failures to forward to the Commonwealth or put in trust monies in respect of employer contributions or superannuation the second defendant had acted dishonestly;

That the second defendant had dissipatea or negligently misappropriated monies which should have been paid on behalf of employees as employer contributions to superannuation:

That superannuation benefits accrued or accruing to Territory Public Servants and retired Territory Public Servants were at risk because the second defendant was irresponsible:

That the government was under a liability to provide funds to the Commonwealth in respect of employer contributions to superannuation and that the second defendant dishonestly and/or incompetently failed to provide such funds:
That the second defendant is incompetent:
That the second defendant is dishonest:

That the second defendant was dishonestly putting forward a scheme of superannuation for the purposes of concealing a failure to adequately and responsibly provide superannuation funds.
(Denied by plaintiff.)

In each of the publications the second-named defendant was identified by name and by office. (Denied by plaintiff.)

Each of the publications complained of were calculated to disparage the plaintiff in his office as Treasurer and to greatly injure his credit and reputation as Treasurer and as a member of the Northern Territory Government.	(Denied by plaintiff.)

By reason of the publication by the plaintiff of the matters set out in paragraphs 14 and 15 hereof the second defendant has been greatly injured in his credit and standing and has been and will be brought into public scandal, odium, ridicule and contempt and the second defendant claims damages." (Denied by plaintiff.)

In his Reply to the Defence to Counter-claim, the second defendant generally joins issue.	He admits that the plaintiff is a person who takes part in public affairs but denies that the publication of the matters alleged was fair comment within s.6A of the Defamation Act.	As    to paragraphs 10 and 11 of the plaintiff's Defence to
Counter-claim, (supra) the second defendant denies that words were uttered honestly and says that the statements were actuated by malice, particulars of which are:-

"(i)		The statements were false to the knowledge of the maker.
The statements were recklessly made with indifference as to whether they were true or false.

The occasion in respect of which the Plaintiff claims privilege was the dissemination of information to ACOA members and the public concerning the proposed superannuation scheme and the defamation statements made were outside the occasion and not privileged."

The pleadings include a claim by the first defendant against the second defendant for indemnity or contribution in the event of the first defendant being held liable.	The second defendant sets up a defence alleging, in effect, a duty on the part of the first defendant to publish the press release verbatim or at least in similar form, but had failed to do either, as a result of which it lost the privilege it would otherwise have been accorded

F	I.

under s.6 of the Defamation Act.	Alternatively, the first defendant had failed to publish a reasonable statement by way of contradiction or explanation of the report of the second defendant's press release as requested by him, thereby depriving itself of its statutory defence.

In John Fairfax & Sons Ltd. v Hook and Anor. (1983) 47 ALR 477 the majority of a Full Bench of the Federal Court of Australia said at p.481:-

"	A matter is defamatory if it tends 'to lower the plaintiff in the estimation of right-thinking members of society generally' (Gatley, op cit, para 41) or .'if it is likely to cause ordinary decent folk in the community, taken in general, to think less of him' (per Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172).	The question is  not what the defendant meant or how the words were understood by the--pla-int;;-if-f-.	The meaning to be given to the words used is the meaning they would convey to the ordinary reasonable man.	They are to be construed in their na.:tural and ordi.n_ary meaning, ie in the meaning in which reasonable men  of	_o_rdinary intelligence_,·c-\'lith. _ the orftinary-man's generaL.knowledg.e .and.experience of worldly af-fairs, would -he 1-ikely to understand them - -0           ,           (Gatley, op cit, para 93).

In Lewis v Daily Telegraph Ltd [1964] AC 234 at 258, Lord Reid said:	'There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense.	The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction.	So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.'		Lord Devlin said in the same case ([1964] AC at 280):	'There must be added to the implications which a court is prepared to make as a matter of construction all such insinuations and innuendoes as could reasonably be read into them by the ordinary man.'

•

In Jones v Skelton (1963] 3 All ER 952 at 958 Lord Morris, speaking for the Privy Council, said:-
'In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation.	In Capital and Counties Bank v Henty {1882) 7 App Cas 741, Lord Selbourne said {at 745): 'The test according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men to whom the publication was made, would be likely to understand it in a libellous sense.'
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning:	any meaning
that does not require the support of extrinsic facts -­ passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary  and natural meaning of words {see Lewis v Daily Telegraph Ltd (1963] 2 All ER 151).	The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided  not by any special but only by general knowledge and not fettered '.by _a_ny _strict-1-egal- rules of construction,
woa-ld-  draw   -from   the	-Words, -'-	·	·  -	----- ·	_--_:_-_:_

In Mirror Newspapers Ltd v Harrison {1982) 42 ALR
487 at 492.;..3; - 56 ALJR 808,-Mason· J,· witn--whom-the-other members of... tlie·---coiirt -agreed, said:	'A  distinction needs
to be--drawn--becween: the-reader	01  s-u rtderstarrd1ng--of--w hat=-0  "        '  "        _	::c­
the newspaper is saying and judgrnents or conclusions which he may reach as a result of his own beliefs and prejudices.	It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result.	It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff.	The defamatory quality of the published material is to be determined by the first, not the second, proposition.
Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.'"

f

On the defence of qualified privilege, the majority said in Hook's case at p.485:-

"	The circumstances in which a defendantmay~rely upon a defence of qualified privilege were considered by the New South Wales Court of Appeal in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.	In an exhaustive examination of the case law the court referred to the classical statement of principle by Parke Bin	Toogood v Spyring (1834) 1 er M & R 181 at 193;	149 ER 1044 at 1049-50: 'In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the
well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.	In such cases, the occasion prevents the- i-nference of malice, which the law	raws from unauthorized communications, and affords a qualified defence depending upon the absence of malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; -and -the-law ,has not--restl:'icted the -right tq 	 make them-with±n any narrow limits.'
In Adam v ward --{1-917] -AC 309, Lord Atki11so_n_f?tated the -principle thus=- --- • a _pr.iv_i.leged o_ccasion is, in.
--reference- to-quali£.ied_._priv:ilege_, an_o_ccas.ion 	where the
person who makes a --communication has- an interest or -a -
duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.
This reciprocity is essential.'" (at 334).

As to the defence of fair comment, Ferguson J. in Orr v Isles (1965) 83 WN (Pt 1) (NSW) 303 at 320 et seq. observed:-

"	The right to comment on matters of public interest does not create a privileged occasion;	it is a right that belongs equally to every citizen and is no

privilege at all {Campbell v Spottiswoode (1863) 3B & s.
769;	122 E.R. 288) •••

A comment is an opinion expressed on something that has taken place.	Facts must be in existence before they can be commented upon.	If the existing facts upon which the comment be based of themselves impute something defamatory of the plaintiff, that is not the responsibility of the defendant who comments upon them. It is not his fault that they happened.	If something of public interest occur, it is the right of every citizen to freely discuss it...
At common law, on the assumption that the published facts upon which the comment is based are defamatory of the plaintiff but true, the defendant, relying upon the defence of fair comment, can be held liable, even though he do not justify by pleading the truth of the facts in a separate plea, only if his comment be unfair.	This is because the plea is not directed to the facts at all, but only to the comment, and it is only the comment that is the defen-dant' s responsibility..• The plea defends the comment on the basis that the allegations of fact are true, but it does not seek to justify such allegations on that basis;	they are defended on the basis that they are matters of public interest.	The public is entitled to know about them.	Though in considering the plea,--comment-is-to-be separated-from fact, if the comment so separated be fair, the whole publication must be regarded as fair comment•••

     By_ such_a _plea_ all that the defendant, in effect,- - alleges is,-"I am not guilty of a libel because all I
have	done is to comment fairly on a-niat-ter- -- of-- publ-ic	c­
interest."	If that be established, he is entitled to succeed in the action.	There is no need for a defendant to justify any defamatory imputations contained in the facts.	Where the defence of fair comment is relied upon, whether the facts be defamatory or not is an immaterial consideration.	The defendant is entitled to comment upon them in any event if they be matters of public interest.	If the defendant fail on the plea, it is not because defamatory allegations of fact have not been justified, but because the comments upon them are not fair comments•••

It is for the above reasons that a plea of fair comment must be read as pleaded to the comments only and, if the plea be established, it is a complete answer to the plaintiff's claim•••

Under such a plea, it must be remembered that it is the fairness of the comments, not their truth, that is in issue."

As Hunt J. said in	Hawke v Tamworth Newspapers Co.
Limited (1983) 1 NSWLR 699 at 704:-

"The material upon which the comment is based must be stated expressly or impliedly in the matter complained of or it must constitute a matter of contemporary history or general notoriety and thus, in one way or another, be made known to the readers to enable them to judge for themselves whether they agree with the published opinion based upon that material:	(Myerson v Smith's Weekly Publishing Co. Limited (1923) 24 SR (NSW) 20 at 27;	Goldsbrough v John Fairfax & Sons Limited (1934) 34 SR (NSW) 524 at 531, 532 and Orr v Isles supra at pages 321, 329 and 330;	Bickel's case supra at 498."

The evidence of Neil Naessens, who at the material time was employed as a journalist with the ABC at Darwin, is, in my opinion, critical to the determination of this case;	for it was he, who, armed with the plaintiff's newsletter (PB), spoke to the plaintiff over the telephone

on the night
0

of 31 October _1982 _and that convers_ation, in

the light of what Naessens had gleaned from the newsletter, was translated by Naessens into his script for the ABC news broadcasts the following day at 5-15 a.m., 6-25 a.m. and
7-25 a.m.

All three broadcasts contained assertions critical of the Government attributing dishonesty and
-
irresponsibility to it in both general and specific terms
about not meeting its commitments to the Commonwealth Superannuation Scheme and attributing to the second

defendant as Treasurer, a failure to forward any employer contribution to the Commonwealth fund since self-government in 1978 and asserting that no provision had been made to hold these moneys, which amounted to millions of dollars, in trust;	and that the Government no longer had the money.

It was to the content of these broadcasts to which the second defendant reacted with his press release (Pl) on
1 November 1982.	Naessens' evidence provides the pivotal point, therefore, in founding the basis for the press release.	Thus the first issue to be determined is whether
Naessens correctly reported the plaintiff as a result of
-	-   -	-
reading his newsletter (PS) and in interviewing him over the
telephone.

--
Naessens was admittedly a reluctant witness who

came to Darwin -from :c-Brunei to, testj,_fy. _

_:_-_ tll: --

arly_ part

of his evidence-in-chief he was vague in his recollection 0£ events and of the substance of his conversation with the plaintiff on the night of 31 October 1982.	This was understandable after a lapse of some three years, especially as I gained the distinct impression that until he entered the witness box he did not have very much idea about what he might be asked.	Indeed, (for whatever reason), despite the potentially critical nature of his evidence, he gave every indication that he had come to court without being proofed.

Even in the first instance when he was given an opportunity to refresh his memory after both documents (PB & PlO), had been shown to him, he remained vague in his recollection about "specifics" but after a short adjournment, during which he was given the opportunity of a fresh look at both of those documents, he re-entered the witness box with his memory clearly refreshed.	I accept his testimony as being reliable from that point onwards.	At p.898 of the
-transcript he gave a narrative of his recollection in these terms:

"Well you've had the opportunity of  reading it.	I mean we've gone to some pains to give you the opportunity of reading it? --- 'Well what I mean is that we'd started with the newsletter, and I rang Mr Cavanagh about the newsletter, I asked him firstly I think - basically  the first :"4Uestion-:-:wa_s-,t-f,-:that---:meet-i-ng---Was -still on.		I asked---him-whether-·the'	some-:of:the,arguments-advanced - ·'·
in the newsletter were still current.	I think I asked him too whether they were going to be discussed at this meeting'. -=: 'Mai-nt-y: ht-s = ---:wha:t--'---we-=1:alked-about was the amount -,o-f money involved. - - I	kept pushing him on that/ - I	kept as-king --1 Well how much money is ip.volved?' and I think I also asked him over how long a period the N.T. government was supposed to have been making these payments, and he was very definite, in fairly strong terms, even this business of the N.T. government being dishonest, particularly irresponsible.		Now I remember that very clearly, and it is - you see that was said several times, I mean he mentioned that a number of times that he felt that the whole procedure on the part of the N.T. Government had been irresponsible insofar that he had allowed the situation of what developed.
Where they were at that stage had run out of money or were----11nsure -Whet-her there--....wa.s-.....go-ing--to--he--enough- to meet our obligations, when the changeover was going to be made from one public service to another.	So in that respect I can remember the conversation, and I remember this issue of the money, and the sentiment that was expressed, the union of Mr Cavanagh felt that the N.T. Government's whole procedure had been irresponsible.
Does that answer your question?'

"

And you mention a question of an amount of money, did you get an answer to that question? --- 'Yes, because - well they were - at the time it was still fairly vague, and from memory I think there was a figure mentioned that I - I don't know, I turned it into millions of dollars, but I think there was a specific figure mentioned, that I couldn't check for it didn't make any sense to me within the context of the statement, and I left that alone, and I just turned it to a rather more general sort of phrase of millions of dollars being involved, rather than two hundred million or fifty million - whatever it was, but there was a figure mentioned.	I did not use it but that makes it more general.'"

At p.906 under cross-examination by Mr. Waters of counsel for the plaintiff, the following exchange took place:-

"Mr. Naessens, it's fair to say, is it not that with the passage of all this time that you are not able to say with any particularity what matters you drew in preparing -your:. cript,,what:-·matters;.·.¥ou :drew on the.. -•·· newsletter P8 and what matters you drew from
Mr. Cavanagh, isn't that the case? --- I think I could say that specifically the comments on the irresponsibility· although· the·	conclusion::cou-ld have _,been_
drawn. from that paragraph alone,.-were repeated 	-------""·· -
specifically by Mr. Cavanagh- as-well··as the reference·to money and the dishonesty, that none of this was in the newsletter."
He was pressed by Mr. Waters at p.910 on whether 'dishonest' was his interpretation.
"I've drawn your attention to that paragraph there, in putting your own script together, did you interpret that as being a dishonest action? --- No, I didn't.	I asked Mr. Cavanagh, 'Do you - is that the way what - is that what you're saying', it's not my interpretation.
Again, I asked Mr. Cavanagh, 'Is this what you're saying?-'n ------- ••·	---------------- ----------------- ----- ---------

At 912 in answer to Mr. Garnsey, of counsel for the first defendant, the following exchange took place:

"After·:yoit got ·exhibit P8, the newsletter - at least the
... _first 2 pages of it, you telephoned Mr. Cavanagh, and you put certain questions to him, and you enumerated two specifically, but then during the conversation, you told my friend, Mr. Waters, that you could say specifically that comments on irresponsibility and money and dishonesty were repeated by Mr. Cavanagh? --- Yes.
In those comments did he use the word, 'dishonest'? Most definitely.

Did he use the word 'dishonest' in relation to the Northern Territory Government? --- Yes, of course, that's what we were talking about.
You will have to excuse me but we've got to be a little pedantic - and did he use the word 'dishonest' in relation to the Northern Territory Government about its intention vis-a-vis superannuation? --- Yes.
You recall him, as you said, using the word 'irresponsible'? --- Yes.	In fact he said that a couple-of--t-imes-.--- Mainly--because I- asked_him about it. Because it was one conclusion I had drawn from that paragraph, and I asked him, 'Is that what you're saying?' and he repeated that.
Did you== ask,=h·im=Jspeci-fi-cal-ly-about----. or.. -to-the  effect of the Nor0 thern="T·erritor y Government--be-i-ng dishonest?----  -,  · No, he volunteered that.
He volunteered the word 'dishonest' did he? --- Yes, I mean I wouldii' t have asked him. It wouidn-•t- occur---to" me bec-ause.-a-I-.-wa.-sn-•.t--.:.::y.ou-know. - that we1·1- .informed on the whole issue, but i·t was honesty- - dishonesty."
As if to close off the argument of mere interpretation he may have attributed 'bitterly' to Mr. Cavanagh and did not.
•Now, in exhibit PlO - that's the ABC news script - could I ask you to look at it, and if you look at the second paragraph, you see the last phrase. 'but the ACOA Executive is bitterly opposed to the scheme'.	Do you recall Mr. Cavanagh using the word, 'bitterly'?"
The answer--J.s on p•.915_£ollowed by more questions and answers of relevance differentiating between
Mr. Cavanagh's comments on the phone and material from the newsletter (Exhibit P8).
•MR GARNSEY:	I was taking you to paragraph 2 of the script for the news item, Mr. Naessens, that's exhibit

PlO, and the phrase 'But the ACOA executive is bitterly opposed to the scheme'.	Do you recall Mr. Cavanagh using the word 'bitterly' when he spoke to you? --- No, I don't think he would've used it so much as that it's probably my own description of the tone of the whole conversation.
Then the next paragraph states that the union's industrial officer, Mr. Cavanagh, said last night, that 'The only thing he would be prepared to accept was a situation whereby the Territory scheme would be available to new members of the Territory Public Service, and anybody who might wish to switch to the Australian Government scheme.'	Did Mr. Cavanagh say that, or words to that effect to you in the conversation with you? --- Yes, because that's the substance of the whole story.

Yes, but do you recall him saying that as_opposed to you getting it out of exhibit P8 the newsletter? --- No, it was - I would've taken - I took him straight through the whole thing and asked him 'You're saying this in the newsletter, is that what you're saying now', so he would've repeated that.
I see? --- And then I can use it, then I can say 'He said that last night'.	If he hadn't said it I would've in some way had to qualify that and say that came from a new-siett--'8:i.-c. .o:r:-:::f.rom-,a	news ,c:r::-e_le_ase -0.r   whatever-.- -	The - whole purpose of ringing him was to be able to say 'Last night he said this'.
So	is	it correct t_Q_:say,_,that:=in --:t-he=sori:pt, :when °it t;ises -_
the words 'Mr Cavanagh said' or "He said', that's something that -Mr Cavanagh -eith_er said in those very - - - - -
words to you in the conversation, or Mr Cavanagh said, having been directed to the appropriate part of the newsletter 'Yes that's so'?	Exactly.
Going to the last sentence on page one, 'he claimed the territory government had failed to make adequate employer contributions to the Commonwealth fund, and now faced a huge backlog of millions of dollars'.	Did
Mr. Cavanagh say that to you? --- Yes, because as - that came back with the money question.
HIS HONOUR:	That came back? --- The money, you know, because -I kept'-ask-ing--him h-ow--much--money-was 'involved and - and it was just too vague and he left the figure alone and turned it to millions of dollars then rather than the figure that was mentioned.

Then on the next page, the first paragraph, 'Mr Cavanagh said that the government might be required to make large lump sum payments to the Commonwealth fund, but it no longer had the money';	did Mr Cavanagh say that to you in the conversation? --- Yes, that - that referred to the irresponsibility.

Yes.	Do you recall him saying the words, 'But the government no longer has the money?' --- Yes.

Then the next paragraph  he said, 'The Treasurer, Mr. Perron, had admitted in the legislative assembly that the territory had not forwarded any employer
contributions since the establishment of self government in 1978, nor has there been any provision made to hold these monies in trust', do you recall him saying that to you? --- Well, that came from the newsletter.

Did you put those parts of the newsletter to him? Yes.

He said that he was maintaining that? ----Yest I wouldn't have used it if he didn't."

The plaintiff, for his part, in evidence-in-chief,
.   --·       . -- -.	....
was asked whether he received a telephone call from a
journalist employed by the ABC.	He acknowledged that he had received a telephone call from a journalist called Neil

--            ::- _-:--- ---  ---	-- + _-

-=- . -- .:: _

Naessens. follows:-

His examination-in-chief at p.160 proceeded as

"Can you recall what he enquired of? --- Yes, it was a very - it was late in the afternoon.	It was a brief conversation.		Naessens said to me, 'I have your newsletter.	Is the  meeting  on Wednesday,  3 November, or Wednesday preceding?'		I said, 'Yes.'		I'm just thinking now whether that in fact - that would've been a Sunday - it wasn't a Sunday he rang me - it was a work day.	He rang me at my office - it must have been the Friday before he rang me.		It appeared on the first - it was the night before apparently the article was published by the ABC.	He rang me - he said he had the newsletter, was the meeting proceeding.		I said, 'Yes, it was.'	He said could he use the - take extracts from

the newsletter in my name, and I said yes, he could. He asked me in words to the effect of, 'What are the amounts of money likely to be involved if the Territory has to pay the government - or the Commonwealth Government contributions for this scheme that you refer to?'	I said, ---
Just pausing there - is what you're relating now verbatim of what he told to you? --- To the best I can recall it, yes.	I said to him that that would depend upon any final arrangements in finance being put in place.	He said, 'Could it be millions of dollars?'	I said, 'If it went back to self government, it could be millions of dollars.'"

The.reafter, the plaintiff was examined by his counsel point-by-point of the contents of PlO (the tender of which was limited to its contents as opposed to the fact of it having been broadcast over the ABC on any of the occasions mentioned in it).	The plaintiff did not

expressly admit to any of the statements attributed to him
·--·----  --;•.•.:·:	:°.:, ; ;_;_·,;_	L::
in PlO;	and overall, his answer to a series of questions asked of him, about whether or not he had told Naessens in so many words what was attributed to him in the document,

·,?

was in the negative to every such question. pages 168-171.)

(Transcript

It is apparent, therefore, that the evidence of the plaintiff and that of Naessens is diametrically opposed and hence an issue of credit arises between them.

As I have said, the evidence of Naessens is critical since the response from the second defendant was

clearly activated by what was attributed to the plaintiff in the transcript of the ABC broadcast.	At some stage during the day of 1 November 1982, but before the issue of the second defendant's press release, a transcript of the ABC broadcast prepared by Naessens came to the knowledge of the second defendant, and I so find.

It becomes necessary, therefore, to try to resolve the issue of credit between the plaintiff and Naessens.
The plaintiff was no doubt incensed by what he read on the back page of the "N.T. News" later that day for the language in ref-Utation::-:::of ':'what -had'"been attributed 0to --him was strong and reflected upon his personal integrity as a spokesman for the ACOA.	It must be borne in mind, and I so find, that the plaintiff , haa..::n0t-= heard--the "A.BC,,broadcast- on,that -day
and at the time he read the item in the "N.T. News" he was unaware :of how his conversation with Nae:fssens -<nad -:,been--·· =--,-," -,
reported.	Matters had developed in the meantime to--the - -·· extent that the second defendant, through his staff, had obtained a transcript of the ABC broadcasts and the plaintiff's newsletter and had compiled a press release in the form of Pl, of which a truncated version appeared in the "N.T. News".

Accordingly, at the time the plaintiff read the news item he was unaware of the full content of both the ABC broadcasts and of the second defendant's press release.

Returning to the issue of credibility, Naessens had no interest in the topic of superannuation except in his role as a journalist who, on the evidence, and I so find, held a proper ethical view of his duties as a journalist.
As well, he had graduated in law from a University in Holland.	Furthermore, I find that at the relevant time he knew neither the plaintiff nor the second defendant and barely,understood the somewhat complicated issues involved in the question of superannuation.			At the time that he was called as a witness, he was outside the jurisdiction where he could not be compelled to come to Court.	He was far from s pathetic towards the--first		e:fendant and was even hostile about the approaches that had been made to his superiors in Singapore by Mr. Hogan, the managing editor of the first defendant,-_ to,-,h_ave himc:-rgle_as.e_d ,_f-0r,cthe,,trial. (Transcript page 910.)	Indeed, he came to give evidence at great personal-inconvenience to himself and was called on behalf of the second defendant with little prior notice of the reason for his being called.	Counsel for the plaintiff had had a brief opportunity of conferring with him before he was called as a witness and hence I conclude that he was neutral so far as the parties were concerned.		He had no reason at all to do other than tell the truth as well as he could recall it, and I so find.

It was never put to Naessens by counsel for any party that the news item was a fictional account or that he had concocted the story.	Naessens said in evidence that he put the contents of the newsletter PB to the plaintiff for comment and that the plaintiff agreed with its contents.	I accept his evidence.

In all the circumstances, therefore, I prefer the evidence of the witness Naessens to that of the plaintiff in relation to what was .discussed over the telephone, which I find occurred on 31 October 1982 (and not earlier, as the plainti£f_sugge 't:: c:l, in contrad-i---ction of .his first. acknowledgment of that date being the correct date}.

•· ..c..'.The, plaintiff-'_c.s oden-ial-L,-Of ,the contents of Pl0	under cross-examination (which I reject} is set out at pages
348-350 of--the-transcript

It is perhaps not without significance that the plaintiff obtained a copy of the transcript of Pl0	from an employee of the ABC.	At no time, however, has the plaintiff ever claimed that the ABC misrepresented him in the various news broadcasts of 1 November 1982 nor, in parti ular, did he choose to sue that institution or call for an apology or a retraction.

,,

What emerges is that the proposed legislation during the November sittings of the Legislative Assembly would bring about a scheme, which both the ACOA Federal Secretary, Mr. Munro, and the plaintiff did not want to proceed, and which had reached the stage of being in final form.	(See Exhibit PS and transcript pages 261 and 262). Federal legislation was necessary, however, and an option was open to the ACOA to seek opposition in the Senate in order to frustrate the proposed legislation in the Legislative Assembly.-·	A-meeting---had --been--called to discuss the issue and any fair reading of the plaintiff's newsletter (Exhibit PS) would indicate that he, at least, was personally stoutly opposed to it although, in fairness, the question was left to be determined by ACOA members at the meeting., -- For its_: part-;::•;the -F-ederai·· body of -the.; ACOA saw :-· ~
the proposed Northern Territory scheme as a possible breakdown of superannuation schemes elsewhere.	(Transcript page 424.)	The plaintiff, for his part, wanted more debate on the subject and, by calling the meeting, that is what he hoped to achieve.	In consequence, by resort to this tactic, he achieved the desired result (Transcript p.40S).

The plaintiff had a distinct motive, as part of his job as Industrial Officer of ACOA-#--±<Ldo wha:t~lla could to	,
frustrate the passage of the Bill and enter negotiations of which he had a considerable interest in his capacity as the

Industrial Officer of the ACOA.	In particular, I .find that he had a clear motive to allege, and did allege, that the Government had been "dishonest about its intentions", "irresponsible in not meeting its commitments", "had failed to make adequate employer contributions to the Commonwealth fund", "and now faced a huge backlog of millions of dollars" and that "the Government might be required to make large lump sum payments to the Commonwealth fund, but no longer had the money".	I find that these words were capable of causing and were intended to cause uncertainty and mistrust among ACOA members. -
-------      ---   ------  ---- ----------

With a meeting scheduled for 12-15 p.m. on Wednesday, 3 November 1982, and the ABC broadcast coming, as it did 'onJ.. November- 1982,·::in the·-wake--of ,the:plaintiff's newsletter (PB) of 25 October 1982, it was deceptive or capable·of-deceiving the--ordina:ry list-ener of the A.B.-C. broadcasts, which Ifind·were -made onthe morning,ofl November 1982.	It was far from the truth and the allegations contained in those broadcasts were blatantly false, as the plaintiff conceded at the trial.	The false allegations were capable of destroying the negotiations which were currently in hand between the Northern Territory Government and the Commonwealth.	Whether inspired by exaggeration, rhetoric or simply an attempt to sabotage those negotiations, I find that they were intended by the plaintiff to bring about that result.

_.	'	l

As a result of the broadcasts and the press release, the plaintiff admitted that he was worried about his future employment (Transcript p.183) because of the fact that he knew from going through records in the national office (of the ACOA) that it was inevitable that a copy of the press release would surface in the national office and he would be called upon to give an explanation (Transcript p.185).

On the plaintiff's own evidence (Transcript p.348), the fair interpretation of the contents of the ABC broadcast (PIO) is that it seriously misstated th_e true position of the Northern Territory Government.		Hence, it could fairly be described as being deceitful.	Indeed, being so far from the truth,:,it, was a -f--air·eomment-"to--a'sc-rib-e sp'itefu-lne·ss~-·a-s the motivating force on the part of the originator of it.
The plaintif-f--himself agreed in. evidence that the allegations in it were patently false and capable of destroying the negotiations then in train between the Northern Territory Government and the Commonwealth.	It follows that if the plaintiff were the originator of the material contained in PIO, then his utterances amounted to what could fairly be described as sabotage qua those negotiations. _

The plaintiff was probably caught unawares when asked by Naessens over the telephone to comment upon the points raised by Naessens based upon the plaintiff's newsletter (PB) and, for this reason, answered his interviewer with the ardency of a keen barracker and gave little heed to caution in his responses.

The plaintiff clearly had a motive to make spiteful allegations about the Government and the Treasurer, in particular, because, despite all his efforts, the final draft of a superannuation Bill was going forward without further debate at a time when the plaintiff (no doubt for every good reason as he perceived the position) held such entrenched views about it to the contrary.	In this light, the p1aintiff:had=-not achieved--his object, but despite·this, he clearly intended to make a last ditch stand at the forthcoming -meeting on- the--following Wednesday.	Given the. opportunity,,when Naessens -'telephoned him, I--find that he- saw­ this as an opportunity to denigrate the Government scheme and this explains his outburst of a highly charged nature as exemplified by the contents of PlO.	After all, his implicit instructions from Mr. Munro were to achieve this result.	The plaintiff had come to Darwin on a twenty-one months' contract and had about sixteen months' service representing white collar public servants who were a different group of people to work with compared with those

he had represented before.	They were well read and educated and most of them knew their own superannuation requirements.	He realised that they tended to question and be critical of their officers if they thought wrong information was handed out;	and he, in his term here, had already been the subject of minor criticism by them.	At   the time of the publications the plaintiff had about five months of his contract remaining.	He was thus on limited tenure and he was keen to achieve a result which was to frustrate the passage of the supexannuation Bill.	He achieved that result and his tenure was extended.

The question might well be asked, what possible motive could Naessens have in falsely stating matters that precisely-se ved:-t-he--pl-a.i.cnt..Lf:f s -needs ,in·achieving· the --­ result which he so desperately sought?	I find that Naessens had no possible motive to report what he did unless he had been told those things by the plaintiff.	It would have been not only unethical but journalistic irresponsibility of the highest order to have attributed such trenchant criticism of the Government to the plaintiff unless the plaintiff himself had said those things.	I accept Naessens' evidence that he "cleared" his copy with the plainti f- befQ t=L.it=_wap"pro.ad_q_a t ._._, "---- -- - -- 		. _

As I have already observed, the plaintiff at-00 time threatened to sue the ABC, let alone sought an apology or retraction from it;	nor did he ever complain to Naessens that he had been misquoted or falsely represented.

It is clear from the dissemination of the ABC broadcast (PlO) and the added excerpt of the press release which appeared as a late news item (P2) in the "N.T. News", that fear was created amongst the members of the ACOA and amongst members of the general public who had an interest in responsible government.

If, as I find is the case, the plaintiff said the words attributed to him in PlO, then in the light of what he said in :-eviden-ce---:at  the	tria,l ,,=;:namely-,- :that _the_yw re_ .mostly. false, it follows that he wilfully spread uncertainty and mistrust of the Government and the Treasurer, in particular, among members of -the ACOA-and of the general-public-who had- an interest in responsible government.	I find, therefore, that his words were both irresponsible and indeed reckless.
I find also that he had a personal interest in doing so because of the limited nature of his tenure of office at the relevant time.	Moreover, it follows, and I so find, that
he was dishonest in his utterances about the Territory being
-----· -----------------
faced with a huge backlog of payments involving millions of dollars, which, in ordinary basic parlance, could be aptly described as a bare-faced lie.

In view of the findings of fact which I have made, I conclude that the plaintiff did say what Naessens attributed to him.

Applying the tests to which I have referred earlier, while I am prepared to find that the meaning given to the words and imputations contained in P.2 are capable of conveying a defamatory meaning to the ordinary reasonable man of ordinary intelligence, drawing on his own knowledge
and experience -of--human af-fa-irs-,- -{and -I--so--hold)--what-wa-S	­
said of and concerning the plaintiff in P.2, was fair comment _on matters of- public -interest as alleged in paragraph 4 of the first defendant's Amended Defence, since,
on the evidence, I £ind all of the facts particularized therein:,pr-0ven-'and.:;a:n - abs'ence  inal:ice_ -on""the- pa"rt· of: the first defendant.

In explaining the rationale underlying -the defence of fair comment made in good faith on a matter of public interest, King C.J. said in Pryke and Others v Advertiser Newspapers Limited and Others (1984) 37 SASR 175 at p.191:-

"The defence of fair comment is the means by which the law protects from actions for defamation, the free expr--ession---Of_--0pinion--as- t0- public matters.	It
protects even defamatory reflections on the conduct and character of public figures and those engaged in public activities provided that the views expressed are views which might be held by a fair-minded person.	A great deal of latitude is permitted to those who engage in criticism of the conduct and character of persons in the

public arena.	The criticism must be such as might be made by a fair-minded person, but the law makes considerable allowance for the prejudice and bias to be found even in generally fair-minded persons.	The doctrine of fair comment therefore provides extensive protection to citizens who express opinions, even unfounded opinions, on matters of public interest and to the newspapers and others who disseminate those opinions."

I respectfully agree with, and adopt, these observations.

Upon a critical analysis of Pl, I am satisfied that while those parts of it which reflect upon the plaintiff's integrity are capable of a defamatory meaning, a defence-of fair comment is, for the same reasons,	open to the second defendant.	In particular, I find that the second defendant has established that the £acts stated in -the- first, seventh, eighth and twelfth paragraphs thereof were true and that the
remaining -paragraphs - amounted -to--comment ·-:upon.:-those ·f a·cts:- - - - -- -- -- --

which -was.bona fide and fair comment -on-a matter of public interest.	The comments were	based partly on the facts expressly stated in Pl itself and, to a lesser extent, on matters of general notoriety and were thus, in one way or another, made known to those who read the press release to judge for themselves whether they agreed with the published
opinion based upon that material.
-·--------- ---- - ----------- ------

In my opinion, in the rather exceptional circumstances of this case and having regard to the wide implications of the Northern Territory Government's capacity or otherwise to finance a superannuation scheme of great proportions and the consequential effects upon the general public of the Northern Territory, both as taxpayers and as residents who, in the public interest, had a right to be kept informed of such matters, the second defendant, as Treasurer, was under both a social and moral duty, in the
light of the plaintiff's newsletter and the ABC radio broadcasts, to publish an.immediate and convincing public
refutation:" of _the·plaintiff 's   0  all:egations_-; - --..,Moreover,	f:!~-­
first defendant had a corresponding public duty to inform the general public of the Treasurer's response for the same reasons.	I therefore hold·that the occasion was privileged, that there was no malice on the part of either the first or second defendant and the·a fence of qualified privilege has been made out by each of-them.

Sections 6 and 6A of the Defamation Act provide as
follows:-

"6.	PRIVILEGE OF NEWSPAPER REPORTS OF PROCEEDINGS OF PUBLIC MEETINGS AND OF CERTAIN BODIES AND PERSONS
-
A fair and accurate report published in·any newspaper of the proceedings of -
(a}	a public meeting;

49

)rl	,r

any meeting (not being a meeting to which neither the public nor any newspaper reporter is admitted) of a municipal or district
·council, school committee or board of advice, board of health, board or local authority formed or constituted under the provisions of any law in force in the Territory, or of any committee appointed by any of the
above-mentioned bodies;
(ba) a meeting of the Legislative Assembly or of a committee of that Assembly;
a meeting in the Territory of any royal commission or select committee of either House of the Parliament of the Commonwealth;	or
a meeting of shareholders in any bank or incorporated company,
and the publication at the request of any Government office or department, or at the request of the Minister, the Administrator or _the Commi-ss_i-one o_f_ Police,_ o_f.. any notice or report --issued by- _it or him for the information of the public,·shall be privileged unless it is proved that the report or publication was published or made maliciously:
Provided that -
nothing in -this -section shall authorize the publication of any blasphemous or indecent. matter; -· -- -- --··-·•

---....-(b)- the -protection afforded by this section shall not be available as a defence in any proceedings if it is proved that the defendant was requested to insert, in the newspaper in which the report or other publication complained of appeared, a reasonable letter or statement by way of contradiction or explanation of the report or other publication, and refused or neglected to insert the letter or statement;

(c)		nothing in this section shall be deemed or construed to limit or abridge ·any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit.

For the purposes of this section, 'public meeting' means any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted.
6A.	FAIR COMMENT

Fair comment shall be privileged if it is published in respect of -

any of the matters with respect to which a fair and accurate report or publication is privileged under section 6;
the public conduct of any person who takes part in public affairs, or the character of any such person, so far as his character appears in that conduct;
the conduct of any public officer or public servant in the discharge of his public
---functie-ns-,--or the character of any such person, so far as his character appears in that conduct;

"

Even though the statutory defence under s.6A of the Defamation Act would not, in my opinion,- have ava--j_led t:he first defendant because of the edited and truncated··form -of P2, (for the reasons given by the majority in Hook's case (supra) at p.490, and by Street J. (as he then was) in Campbell v Associated Newspapers (1948) 48 SR (N.S.W) 301 at p.304), I hold that having regard to the definition of "report" in the Concise Oxford Dictionary, viz. "Account given.....or--0pinion formally expressed after investigation or consideration or collation of information, description or epitome or reproduction of scene or speech or law case, esp.

for newspaper publ1cation", a report under s.6 is an "account given after consideration of information especially for newspaper publication".	(cf. the obiter dictum of Davies J. in Hook's case (supra) at p.495.)	I find that Pl was, and is, such a report issued by the second defendant, as Treasurer, (who was the appropriate Minister), for the information of the public, after consideration of the information contained in PlO, that it was not published or made maliciously, that, so far as the second defendant was
concerned, the provisos to s.6 did no± _apply and -accordingly - is privileged.	In particular, the letter to the second defendant from the plaintiff's solicitor_ _dated_ R 	Nov:ember
1982 (P13), does not, in my opinion, fall within the purview of paragraph (b) of the proviso to s.6 since it called for  an apolQgy -as :opposed ,to, '1a ::reasonable<letter -or -explanation of the report or other publication".	(The_sharp point of contradi-st-inction is borne 0 out when ss.8 and -9 _ar_e borne in mind.) - Moreover,- by virtue of s.6A, the second defendant's fair comment is privileged under that section as well, since I hold that it was published  in respect of the public conduct of the plaintiff (whom I find took part in public affairs at all material times) and the character of the plaintiff, so far as his character appears in that conduct, which I find was as the second defendant stated it to be by his comments.

The plaintiff, for his part, was obviously incensed by the late news item (P2) and by the second defendant's press release (Pl) which he subsequently saw and on which the news items was, in part, based.	The plaintiff's solicitors called for an apology from both defendants by separate letters dated 8 November 1982, a demand which was ignored based, undoubtedly, on legal advice.

Claims for damages for defamation generate a good deal of neat._		In human affairs action tends to be met with reaction.	That is precisely what has happened here.	On the one hand, there was the Treasurer, on the other, a union official, both diametrically opposed in outlook and each championing the cause of those whose interests he represented.,	- As- a<-result, a -great- volume --(;)f· ev.idence _ was given which related to the protracted negotiations involving the Government,- the Public Service -(both Commonwealth and Territory) and the appropriate unions on -behalf of their.. - respective members.	Although this background took on immense proportions in the minds of the parties to this action, I do not propose recapitulating events, which, to my mind, only serve to highlight the great gulfs which have separated them since self-government.	With these
pre ato y rffit!		I proceed to deal with the second defendant's counter-claim.

I find, on the evidence, that all the words complained of in paragraphs 18 and 19 of the counter-claim, in their natural and ordinary meaning, as understood by a reasonable person, are capable of being, and are, defamatory of the second defendant and contain the implications in paragraph 21 of the counter-claim and were published, as alleged, to members of the ACOA and to Naessens, respectively.	In the case of the members of the ACOA, the publication was of the plaintiff's newsletter (P8) and in the case of Naessens, both (P8)and the plaintiff's remarks during his telephone conversation with him.

I hold that the statutory defence of fair comment under s.6A(c) of the Defamation Act in  respect  of  the excerpt .:£rom c--the--newsl-cetter (P8) -ald.eged ±n----paragraph 18	of - the counter-claim and as pleaded in paragraph 10 of the plainti-ff--1 -s   0    defence thereto, - fails;	since, despite the evidence of Ms June D'Rozario of the purported error in the recording of the question of the second defendant, as Treasurer, in the Legislative Assembly on 12 October 1982 and recorded at p.1012 of Hansard (Exhibit P7), the second defendant's clear and unequivocal answer as recorded and to
which he testified as being accurate, was given in respect of "employee" contributions, alone_,_ ,in	_contradiatinctian 	to "any employer contribution" in the publication complained of.	Hence, the factual basis, or sub-stratum on which the

..	- ..,

plaintiff's defamatory comments were predicated, were false and accordingly the defence of fair comment fails for that reason alone.

Although inelegantly pleaded, I am prepared to hold that the plaintiff's defence of qualified privilege attaches to his newsletter (P8) alone, notwithstanding the defamatory material contained in it, of and concerning the second defendant, since, at the time of its publication to the membership of ACOA the plaintiff shared a duty to report events to the members of the ACOA who had a corresponding duty to receive that information;-	and although the plaintiff was forceful in his assertions and unjustly misinterpreted the report in Hansard and was hence misguided by his-enthusiasni,"I nonetheless-find that he was not theri actuated by malice as was subsequently the case when he spoke to Naessens by which time the meetingche hadc..eal-led for members·of the	ACOA ·was· fast'- approachi-ng •. ..

There was no evidence before me of the extent of the publication of the defamatory oral material alleged in paragraph 19 of the counter-claim beyond that made to Naessens personally (and evidenced by the contents of PlO) as opposed to the broadcasts themselves of the contents of PlO by the ABC.

Just as in the case of the plaintiff, the second defendant, for reasons undisclosed, has not sued the ABC for publication of the defamatory remarks made against him.

In the result, I find for the second defendant against the plaintiff on the limited basis of a slander uttered to Naessens, who, for his part, carried out his professional duties as he perceived them to be.	The second defendant's damages are accordingly confined to the limited publication of the plaintiff's defamatory remarks to Naessens.		In all the circumstances, however, having regard to the second defendant's high office at the relevant time and the plaintiff's foreseeable realization of the potentiality of wide dissemination by a radio journalist, (which I	fi-nd to -be ,the--case),' :assess damages- at-:$10.,-000-

Accordingly, there will be judgment for.the first and second defendants against the plaintiff on the claim and judgment for the second defendant against the plaintiff on the counter-claim for damages assessed at $10,000.	The first defendant's claim against the second defendant for contribution and indemnity is dismissed.

It follows that the first and second defendants must have their costs of action against the plaintiff and that the second defendant have his costs of action against the plaintiff on the counter-claim.	Order accordingly.