#308: Say You, Say Me
This is a defamation action by which the plaintiff alleges that he was defamed by the defendant. At the time of the publications relied on by the plaintiff the defendant was a Member of the House of Assembly of the South Australian Parliament. She was also the Minister for Families and Communities; for Housing; for Ageing; and for Disability.
The publications relied on by the plaintiff occurred in October and November 2008.
The first occurred in the South Australian Parliament on 30 October 2008. On that day the defendant answered a question put to her by another member of the Parliament. Obviously, that publication was made inside Parliament.
The other two publications are said to have occurred on 12 and 14 November 2008. Those two publications were made outside of Parliament.
All three publications are referred to in the plaintiff’s Second Statement of Claim.
The plaintiff commenced his proceedings in this matter on 17 March 2011. His Second Statement of Claim was filed on 1 November 2011.
In March 2012 the defendant sought from the court, amongst other orders, an order that the court permanently stay the plaintiff’s action. A learned Master of this court decided that application on 7 September 2012. He refused the defendant’s application for a permanent stay. His reasons for doing so were fully and carefully expressed. He set out the background to this action, the contentions of both parties on the application for a stay, the authorities relevant to the issues he had to decide, his findings and his conclusions. The Master’s views of the two emails upon which the plaintiff sought damages against the defendant (the publications made outside of Parliament) were expressed in this way:
In my view, this can be read as the defendant “justifying” or “standing by” the allegations she made (in Parliament). The defendant appears to suggest that there are documents to justify, if not to prove, the allegation she made.
This is an expansion upon and justification of what was said there.
There is a clear temporal and substantive connection between the October statement and the emails.
On the authorities, it seems to me that the emails are an effective repetition or adoption of the October statement, and hence of the imputations conveyed by the October statement.
The plaintiff’s case as pleaded relies on these extra parliamentary statements or publications, and does not necessitate reliance on the October statement which he concedes is protected by absolute privilege.
If I am wrong in coming to this conclusion, the issue should in any event go to the trial judge for consideration . . . as the plaintiff’s contention is clearly arguable.
The Master’s decision and mine require consideration of the privileges of Parliament, the judicial approach taken to extra-parliamentary publications, and the powers of a court to stay proceedings which intrude upon parliamentary privilege.
I have come to different conclusions to those reached by the learned Master. My conclusions are as follows.
First, I am satisfied and find that as a matter of law and fact the defendant could not be said to have adopted, repeated, confirmed as true and republished by reference the statement she made in Parliament in causing the two emails to be sent on 12 and 14 November 2008 in a context which was not protected by privilege.
Secondly, it is, in my view, inconceivable that a trial on the current pleadings in this action could be conducted without both parties being in breach of the privileges of the Parliament of South Australia.
Thirdly, it is my view that the plaintiff has squarely put the truth or otherwise of any defamatory imputations in what the defendant said in Parliament in issue in the trial of this action.
And fourthly, I am satisfied that fairness and justice to neither party can be accorded in a trial where the issues are as they are joined between them.
Whilst some of the above conclusions might overlap with each other and whilst I acknowledge that the first might more appropriately be cause to dismiss the plaintiff’s action, each of them, either separately or in conjunction with each other, well justifies an order that the action be permanently stayed.
As to the issues raised by the pleadings it is agreed that on 30 October 2008, in answer to a question put to her in Parliament by another member of Parliament, the defendant said the following words referring to the plaintiff:
I have to say that in certain circumstances each and every one of us would question whether our children would have been safe in Mr Easling’s care.
We had people going into that house and finding semi-naked boys in his bed.
If you want me to go into detail, I can. It is very unsavoury.
The plaintiff says those words were “the October Statement”, although the defendant says those words were only part of what the defendant said on 30 October 2008 in Parliament in answer to a question regarding when the Special Investigations Unit investigated the plaintiff (Exhibit “DPL1”, Affidavit of Daniel Peter Lorbeer).
It is agreed that the October Statement, or a substantial part of it, was republished extensively through South Australia by the electronic and print media.
It is agreed that on 12 November 2008 an email was sent by Matt Clemow to Hendrik Gout in the following terms:
On October 30th the Member for Davenport raised issues in the Parliament in relation to an investigation undertaken by the Special Investigations Unit of Dept Families and Communities.
In response to the Member for Davenport I again highlighted to the Parliament that the SIU’s responsibility is to investigate serious allegations where a child in the care of the State is put at risk.
The documentation provided by the SIU, since this matter has been raised by the Member for Davenport, includes the many serious allegations that led to Mr Easling’s deregistration as a foster carer.
The plaintiff refers to this email as “the November Email”. The plaintiff says this email was sent to Mr Gout, a reporter then employed by The Independent Weekly, by a member of the defendant’s staff on her direction. Although this is denied by the defendant, the matter was argued before the Master and me on the basis that it was a publication by the defendant.
It is agreed that on 14 November 2008 the same person who sent the November Email to Mr Gout sent the same email to the email address of David Bevan. The plaintiff refers to this email as “the ABC Email”.
There are some issues joined between the parties as to whether or not the defendant knew or ought to have known that the November Email would be republished by The Independent Weekly in the context of a report or commentary upon the making of the October Statement, and whether or not, in causing the ABC Email to be sent, the defendant knew or ought to have known that the content of the ABC Email would be republished by ABC Radio in the context of a report or commentary upon the making of the October Statement. These issues, however, do not have to be resolved for the purpose of determining this appeal.
Although the plaintiff does not say that he has suffered loss and damage as a consequence of the October Statement made by the defendant in Parliament (refer to SofC, para 13), he does say that the October Statement, the November Email and the ABC Email were defamatory of him, were unjustified and were untrue (SofC, para 10).
Further, the plaintiff says that the October Statement carried certain imputations (SofC, para 9). They were said to be:
9.1 That on occasions Officers of the Department of Families and Communities (“Departmental Officers”) had attended at the Plaintiff’s residence and had seen semi‑naked boys in the Plaintiff’s bed;
9.2 That the Defendant was in possession of detailed evidence of inappropriate conduct by the Plaintiff towards children at his residence;
9.3 That the Plaintiff had engaged in acts of a sexual nature with children in his care;
9.4 That the Plaintiff had engaged in acts with children in his care that an ordinary person would consider to be improper;
9.5 That, by the conduct observed by Departmental Officers, the Plaintiff poses a risk of harm to children;
9.6 That the Plaintiff is a paedophile;
9.7 That the Plaintiff preyed upon and exploited children in his care;
9.8 That the Plaintiff took advantage of the vulnerability and naivety of children in his care;
9.9 That the Plaintiff was guilty of sexually assaulting children notwithstanding the verdict of acquittal on all charges the subject of an earlier prosecution;
and
9.10 That evidence exists which supports each of the imputations pleaded herein.
The defendant says that the plaintiff is not entitled to rely on the October Statement made by the defendant in Parliament, or any imputations said to arise from it, because “such a pleading is in breach of the privilege of the Parliament of South Australia and the plaintiff is thereby disentitled from relying on the matters so pleaded” (D, para 20).
Whilst the plaintiff does not allege that he has suffered loss and damage as a consequence of the publication by the defendant of what she said in Parliament (the October Statement) he does say that by causing the November Email and the ABC Email to be sent she “adopted, repeated, confirmed as true and republished by reference the October Statement in a context which was not protected by privilege” (SofC, para 8). This is denied by the defendant. She says that by neither the November Email nor the ABC Email were any of these things done.
Further, the defendant submits that the plaintiff has put in issue the truth or otherwise of what the defendant said in Parliament on 30 October 2008, and that a trial cannot fairly be conducted on that issue, where both parties are precluded, in particular by s 16(3) of the Parliamentary Privileges Act 1987(Cth), from lawfully questioning that issue.
Section 16 of the Parliamentary Privileges Act provides:
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, “proceedings in Parliament” means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of;
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
I have set out s 16 here because I consider it relevant to each of my conclusions on this appeal. I consider that the breadth of absolute privilege accorded to parliamentary proceedings in this country is relevant and important. It also provides colour to the issues for decision.
I do this notwithstanding that perhaps logically the first question is whether by the publication of the November Email and the ABC Email outside of Parliament the defendant “adopted, repeated, confirmed as true and republished by reference to the October Statement in a context which was not protected by privilege”. This is so because the plaintiff says that he does not seek damages from the defendant as a consequence of the publication by her of what she said in Parliament, nor any republication of her words in Parliament by the South Australian electronic and print media. He says that he is entitled to damages against her on the basis that by the two email publications made outside Parliament (“the emails”) she “adopted, repeated, confirmed as true and republished” the defamatory statement and imputations she made in Parliament, where they are not protected by parliamentary privilege.
As to that assertion I am convinced that the submissions advanced on behalf of the defendant are compelling and correct.
In considering this question I regard it as important to differentiate between the words the plaintiff has defined as being “the October Statement” on the one hand, and all of what the defendant said in Parliament in answer to a question on 30 October 2008 on the other. Another Member of Parliament had raised in the Parliament an investigation undertaken by the Special Investigations Unit of the Department of Families and Communities, of which the defendant was then the Minister. The question was whether, when that unit investigated the plaintiff, it did so within its powers and in accordance with a certain philosophy and practice guidelines. It appears to me that these were the topics or issues raised with and the question asked of the defendant in Parliament, and to which she responded. What she said in response was not confined solely to the three sentences defined by the plaintiff as the October Statement.
The first paragraph of the emails states the subject matter of the issues raised by another member in a question to the defendant. It refers to an investigation undertaken by the Special Investigations Unit of the defendant’s Department. It states what the questioner in Parliament stated to be the subject matter of the issues raised. Although the questioner mentioned the plaintiff’s name in the context of an investigation by the Special Investigations Unit the first paragraph of the emails does not. It refers only to words spoken by the other member of Parliament in a question directed to the defendant.
The second paragraph of the emails is a statement that the defendant had highlighted to the Parliament that the Special Investigations Unit’s responsibility is to investigate serious allegations where a child in the care of the State is put at risk. This paragraph states, albeit in slightly different words, what the defendant first said in answer to the question asked of her in Parliament. This paragraph says nothing about any words uttered by the defendant about the plaintiff. Although there may be some “link” between “children in Mr Easling’s care” in what the plaintiff has said is the October Statement and “a child in the care of the State” in the second paragraph of the emails, this second paragraph of the emails does no more than state what the defendant said in Parliament as to the responsibility of the Special Investigations Unit.
The third paragraph of the emails asserts that documentation provided by the Special Investigation Unit includes the many serious allegations that led to Mr Easling’s deregistration as a foster carer. In my view that does no more than describe what was in the documentation provided by the Special Investigation Unit as including allegations that led to Mr Easling’s deregistration as a foster carer.
A consideration of the Master’s reasons for decision, the submissions before me, and the authorities cited before me by both parties discloses that a number of words, and a combination of words, have been used when consideration has been given to when, and in what circumstances, publications made outside of Parliament that “refer” or “relate” to something said in Parliament loses the protection of absolute parliamentary privilege. They include: “a reference to, a comment upon, or an elaboration upon” an earlier privileged publication; “the repetition or adoption of” a privileged publication; a defendant “justifying or standing by” the allegations in a privileged publication; a privileged publication being “repeated, expanded upon and sought to be justified” later; a defendant “adopting and publishing the words said” in a privileged publication; a defendant “adopting, repeating and confirming as being true” a statement made in a privileged publication; and a defendant “effectively repeating” a privileged publication.
The plaintiff here says that the defendant, by causing the emails to be sent “adopted, repeated, confirmed as true and republished by reference the October Statement” and that she did that in a context not protected by parliamentary privilege.
The learned Master was of the view that the emails could be read as the defendant “justifying” or “standing by” what she said in Parliament, and further that she “appears to suggest that there are documents to justify, if not to prove, the allegation she made”. He concluded that the emails were “an expansion upon and justification of what” she said in Parliament. It seemed to him that the emails were “an effective repetition or adoption of the October Statement”. Whilst the Master obviously drew some of these words from the authorities which he carefully examined they are not all relied upon by the plaintiff in this case. For example, “expansion upon and justification of” does not seem to be relied on by the plaintiff here, although he does allege that the emails “confirmed as true” what was said in Parliament.
Some of the other authorities referred to by the Master and in argument before me have considered publications made outside of Parliament that “refer” or “ relate” to something said in Parliament where someone is asked outside Parliament about what he or she said in Parliament. In some cases a person has said words to the effect “What I said in Parliament was what I said”; or “I said what I said”; or “I do not propose to say anything further than what I said in Parliament”; or “I don’t resile from what I said in Parliament”.
There may often be differences of views as to whether a statement or statements made outside of Parliament that “refer” or “relate” to something that was said in Parliament is properly to be characterized as falling within a description of being “adopted, repeated, confirmed as true and republished by reference” to a statement in Parliament on the one hand, or as a statement to the effect “What I said in Parliament was what I said in Parliament” on the other. I have come to a different view and different conclusions to those reached by the learned Master. My views and conclusions have been influenced significantly by the importance in our society of the principle underlying the absolute privilege accorded to statements made in our Parliament, and by what I consider to be the quite high and binding test in South Australia which imposes a fairly strict embargo on any form of reliance on a parliamentary statement as a foundation for an action in defamation against a Parliamentarian. Such an embargo is, in my view, concomitant to the importance of the principle.
I consider that Australian Broadcasting Corp v Chatterton (1986) 46 SASR 1 requires that there must be clearly established a strong link between something said in Parliament and something said outside it before a Parliamentarian can be made liable in defamation on the subject matter of something he or she said in Parliament. I consider that this authority requires there to be found the actual repetition or adoption in substance of what was said in Parliament in a statement made outside it, before the latter is actionable in defamation.
The defendant’s words that the plaintiff says constitute the October Statement are that “each and every one of us would question whether our children would have been safe in (the plaintiff’s) care – people (were) going into that house and finding semi-naked boys in his bed – (the) detail … is very unsavoury”. When I compare those words with the words in the emails I cannot conclude that the emails actually repeat or adopt in substance the defendant’s words in the October Statement. In my view the emails make no reference to what the defendant said in the October Statement in Parliament about the plaintiff, let alone actually repeating what she said or adopting in substance what she said.
What the defendant said in the October Statement in Parliament about the plaintiff forms the base of his claim against her in damages, the words are said to carry imputations defamatory of him, and they are said to be unjustified and untrue.
My conclusion is that they were not, at law or in fact, published by the defendant in the emails and are therefore not actionable.
This conclusion is enough to dispose of the appeal. If the basis upon which the plaintiff seeks damages against the defendant in defamation, being defamatory publications and imputations not protected by Parliamentary privilege which I find were not made, then the plaintiff’s claim must fail and be dismissed, or be permanently stayed. The relief the defendant seeks here is a permanent stay. I would grant such a stay on the conclusions and findings I make.
Even if I was convinced that the plaintiff had an arguable case as to the pleading upon which he relies in paragraph 8 of his Second Statement of Claim, I would not allow the case to go to trial to have that matter determined by the trial judge.
My view of the case is that it is inconceivable that a trial could properly and fairly be conducted without both parties being in breach of the privileges of the Parliament of South Australia. The truth or otherwise of what the defendant said in Parliament and whether her words carried the defamatory imputations pleaded, would, in my view, inevitably be an issue in any trial. I consider that it would be impossible to conduct a trial where s 16(3) of the Parliamentary Privileges Act would not be breached in some way or another, probably by both parties.
The truth of what the defendant said in Parliament would inevitably be questioned, as would her intention and her good faith in saying the words of the October Statement. The drawing of inferences or conclusions, wholly or partly, from what the defendant said in Parliament would, in my view, be inevitable. The words of the October Statement and the imputations they are alleged to carry are in issue on the pleadings and would be issues between the parties in any trial. The plaintiff intends, by his pleadings, to prove the falsity of the statements made by the defendant in Parliament, or at least to put in issue the inability of the plaintiff to prove or justify them. He also intends to question her motive in saying what she said of him in Parliament “notwithstanding the verdict of acquittal on all charges the subject of an earlier prosecution” against him.
My view is that it can not be said in this case that all the plaintiff intends to do at trial is to prove what the defendant said in Parliament “as a matter of history” (cf Della Bosca v Arena [1999] NSWSC 1057 [25]).
It is my conclusion that I should order that the plaintiff’s action against the defendant be permanently stayed.
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