In the case of Flegg v Hallett ( QSC 167 [pdf]) the former Queensland Minister for Housing and Public Works, Bruce Flegg, has been awarded damages totalling $775,000 over malicious comments made at a press conference and in a radio interview by his ex-media adviser, Graeme Hallett.
Queensland Supreme Court Justice Peter Lyons sitting alone, rejected Hallett’s evidence that:
“He believed that there were in excess of 35 contacts involving lobbying activity which had not been recorded in the lobbyists’ register.”
He concluded Hallet was activated by malice because he had been dismissed, and awarded Flegg special damages of $550,000 and general damages of $225,000.
Flegg’s son Jonathon was registered as a lobbyist with public relations consultancy Rowland, and the plaintiff said he had instructed his office not to have any professional contact with him.
This was reported in an online article written by Brisbane journalist Daniel Hurst on November 2, 2012.
Two weeks later, after Hallett was sacked, he made the following announcement to the media.
“I will be making certain disclosures that Dr Flegg is not a fit and proper person to be a minister.
Flegg has dismissed me so I am going to put all of this in the public record.”
The press conference announcement attracted significant interest, as did the November 13 press conference itself.
Despite receiving a concerns notice from Flegg’s lawyers before the press conference, Hallett went ahead, accusing Flegg of being unfit for office for having inappropriate dealings with his lobbyist son, deliberately concealing those contacts, lying about them, doctoring the lobbyists’ register and misleading parliament.
He repeated many of the allegations in a Radio 4BC interview the same day.
Two days later Flegg resigned as housing minister describing the confusion over emails sent by his son as “sloppy administration”.
In December 2012 Flegg launched defamation proceedings against Hallett, saying the allegations were false and unsupported by any evidence.
Hallett pleaded Lange common law and statutory qualified privilege in defence, while Flegg sought aggravated damages on the basis that Hallett was motivated by malice.
Justice Lyons easily found most of the imputations pleaded for all three matters complained of conveyed and defamatory.
On the crucial question of the accuracy of Flegg’s lobbyist register he found:
“There is nothing in the document which demonstrates it was intended to record the identity of every individual who represented a registered lobbyist company, and who made the contact.”
Justice Lyons was unimpressed with Hallet’s credit as a witness, finding he lied at the press conference when asked if he’d had any discussions about another government job and on several other occasions.
His Honour found much of Hallet’s evidence inconsistent and improbable.
With regard to the evidence he gave about emails sent by Rowland PR to Flegg, Justice Lyons concluded:
“In my view, the lobbyists’ register was not, in any relevant sense, inaccurate. Consistent with the usual form of the record, it identified Rowland as having made the contact to arrange the meeting…
Beyond that, I do not consider the arranging of a meeting with a minister itself to be lobbying activity.”
“A sensible way to do this would have been to obtain copies of any emails which might potentially demonstrate such activity.
It would have also been necessary for him to take reasonable steps to identify the forms of conduct which constitute lobbying activity in Queensland, under the Integrity Act.”
Consequently, Lange qualified privilege and section 30 qualified privilege both failed.
Justice Lyons took into account a number of factors relevant to malice, including the short time between Hallett’s sacking by Flegg and his conference announcement.
“Moreover, the publications went well beyond the identification of errors in the lobbyists’ register.
They extended to allegations about the plaintiff’s fitness for office, his trustworthiness, and the propriety of contacts between the plaintiff and Mr Flegg.”
Hallett’s failure to establish the facts before publication was both improper and unjustifiable.
Justice Lyons was persuaded to award aggravated damages because Hallett was motivated by malice and had deliberately used the press conference to increase the effectiveness of his false statements.
His Honour awarded Flegg general damages including aggravated damages of $225,000.
He awarded Flegg special damages of $550,000 – not quite half the figure of $1,088,303.77 he claimed he lost as a result of his resignation as a minister.
“I accept the plaintiff’s evidence, and find that his resignation as a minister was a consequence of the publications.
I also accept that the uncertainties of political life justify a greater allowance for contingencies that might otherwise be the case.”
For the plaintiff: N. Ferrett and M. May instructed by Cooper Grace Ward.
For the defendant: S. Keim SC and R. Gordon instructed by Guest Lawyers.
This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.