The Kumarangk Legal Defence Fund Inc.

Vs Dean Whittaker (District Court Action 310 of 1997)
The original case involving a "letter to the editor" of the local newspaper, the Southern Argus, has now been expanded to include subsequent letters of Dean's to the same paper, and the newspaper has now been joined as a co-defendant. Pre trial procedures are continuing. The State Minister for Aboriginal Affairs has advised that the Edmonds and Lucas Reports are not suppressed by reason of section 35 of the Aboriginal Heritage Act (SA), so that they could potentially form part of the evidence for Dean's defence. The Chapmans are currently challenging the Minister's decision, and the outcome should be known by mid March, when a further case evaluation conference is scheduled.

Vs Conservation Council of SA Inc., Friends Of Goolwa and Kumarangk Inc, Kumarangk Coalition, Gregory Lundstrom and Chris Lundstrom (District Court Action 1366 of 1997)
On appeal, the Conservation Council was been struck out of this case when Justice Lowrie found that "There is nothing at all in these pleadings which in any way implicates the Conservation Council in the publication of this pamphlet". (DCCIV-97-1366) The Chapmans appealed against this decision. Justice Lowrie's strike out order was overturned, and consideration of the Conservation Council's continuing as a party was deferred pending discovery and exchange of documents between the parties. If no evidence emerges in the discovery process that the Conservation Council caused the publication of the leaflet complained of in this case, then the Conservation Council may again be struck out. The court further found that one of the two bases upon which the Conservation Council was allegedly connected to the publication of the leaflet could not be sustained at law. The Friends of Goolwa and Kumarangk and the Lundstroms are defending the case.

Vs Conservation Council of SA Inc (CCSA), Margaret Bolster, David Shearman, Richard Owen (Supreme Court Action 81 of 1998)
In preliminary hearings, five of the original eighteen separate claims of defamation were struck out as being unarguable, and amendments have been made to other claims. Included among the claims struck out were the following:

that the defendants' (David Shearman and the CCSA) words "It was appropriate that we should express our views on planning processes which had failed to consider environmental matters and forward management plans" carried the imputations claimed by the Chapmans. These imputations were that the Chapmans had not addressed environmental matters in the course of the process for securing the planning approval for the bridge, or had caused Binalong to act in this manner (paras 58 and 60 of the original Statement of Claim).
that the defendants' words "A full and scientifically honest EIS for a bridge in its own right was referred to in the Assessment Report but never eventuated" carried the imputations claimed by the Chapmans. Namely, that the Chapmans had failed to carry out a proper Environmental Impact Study for the bridge, acted dishonestly, prepared an EIS which they knew to be inadequate and dishonestly misleading, or caused Binalong to act in this manner (paras 108 and 111).

A defence amounting to some 60 pages plus appendices has been prepared to all remaining claims. The defence argues that the words complained of did not refer to the Chapmans, did not carry the defamatory meanings claimed, were fair comment, true, and/or the subject of qualified privilege.

Vs Neale Draper and Margaret Allan (Green Left Weekly)
This case concerned an article in Green Left Weekly which was written in such a way as to suggest that it was based upon an interview with Neale Draper and that he was quoted in the article.

At trial in December 1998, Judge Lowrie found in favour of the Chapmans in this case and awarded damages of over $100 000 against Draper and Green Left Weekly. Margaret Allan did not defend the case at trial, or take part in the trial in any way. Further details of the trial are available in the Green Left report and KLDF media release about the verdict elsewhere on this site, as well as in Mr Palyga's letter about this site Is this website defamatory?). The trial verdict was appealed by Neale Draper.

On appeal, the finding against Neale Draper was overturned on the basis that the Chapmans had not proved that Draper had published the material included in the article, that he had authorised their publication, or that he knew that the person who interviewed him was a journalist . The Court therefore found that it could not conclude that he 'knew or should have known that [his words] would be republished' [138] once he agreed to an interview. No evidence was placed before the court to demonstrate that Draper spoke the words that the Chapmans had complained about or knew the author's connection to Green Left. The Court found that 'the evidence led by the plaintiffs did not rise above mere conjecture in relation to the initial publication by Draper to [The Green Left journalist]' [149].

The Court also found that the Chapmans were not identified in every passage complained about, but that the statements contained in Green Left were defamatory of the Chapmans. They found that the damages awarded at trial were generous, but not 'manifestly excessive'.

Margaret Allan was not a party to the appeal, and no evidence was called from Green Left Weekly at the appeal.

Chapman v Rural Press Ltd [Victor Harbor Times] [1999] SADC 178
This case concerned 9 reports and letters to the editor published in the [Victor Harbor] Times between 1993 and 1997 (1). Two of the original eleven claims were abandoned at trial (2). The lengthy judgement in this case contains considerable detail about the Chapmans, the case itself and the background events surrounding the publications.

One of the central issues in this case was the question of identification. Only one of the publications mentioned the Chapmans, or their company Binalong by name, most referring in some way to 'developers' associated with the building of bridge to Hindmarsh Island (2). The Chapmans argued that the public 'knew or understood the plaintiffs, or Binalong, to be the developers proposing the building of, or as the developers of, the bridge' (2).

Rural Press denied that the publications were published about the Chapmans. They also argued that the publications did not bear the defamatory meanings the Chapmans had alleged. The defences of qualified privilege, fair comment or fair and accurate reporting of a public meeting within the meaning of s 7 (1) of the Wrongs Act 1936 were also argued. The Chapmans rejected the application of these defences and argued that relying upon them should be understood as malice on the part of Rural Press.

Truth was not argued as a defence, and therefore the truth or otherwise of the statements which were under discussion was not considered by Judge Kitchen (18).

Identification
Judge Kitchen found that references to 'developers' in the context of the Goolwa Marina and Hindmarsh Island Bridge would have been understood by readers of the Times to refer to the Chapmans and/or Binalong P/L. Perhaps one of the most significant findings made in this case is Judge Kitchen's finding that even after the date at which the SA State Government undertook to construct and pay for the bridge, statements about the developer of the bridge were still capable of being understood as identifying the Chapmans rather than the State Government (16-17). He also found that the Chapmans were identified in a publication made after Binalong had gone into liquidation (48). Identification was not made out in two of the 9 claims involved.

Imputations
When considering each publication, the Judge needed to decide whether the ordinary reader would have understood those words as having the defamatory meanings the Chapmans argued they found in them (18). In almost all cases, Kitchen J found that the words used did have the ordinary meanings the Chapmans had objected to, and that they were therefore defamatory. One notable exception was the word 'secret', which was found to ordinarily mean 'undisclosed matters' rather than being 'redolent with improper actions, or underhand or questionable arrangements' (46).

Qualified Privilege
The general basis of the defence of qualified privilege is that the publication was made either on a matter of public interest or in the course of discussion of political and government matters (19). In addition, the publication must have been undertaken in good faith.

Qualified privilege was rejected as a defence in almost all of the claims. Kitchen J accepted that the protection of Indigenous heritage and the government's decision to fund the building of the bridge were matters of public interest, but found that the Chapmans were only incidentally involved in these wider issues and that because of this, the public interest requirement had not been satisfied in relation to several of the publications. In relation to other claims, Kitchen J found that statements about the EIS were so clearly untrue that they could not 'honestly have [been] published' (42). While he accepted that discussion of the Jacobs report or of the challenge to the federal legislation enabling the bridge to go ahead were occasions upon which privilege would apply, but found that the privilege was not available for 'lurid and hurtful imputations' (44) and 'did not extend to protect the heaping of calumny upon the plaintiffs' (48).

Fair Comment
This defence was also rejected in relation to most of the claims because they were assertions of fact rather than comment or because the comment made was not fair. One publication and part of another were found to be fair comment. In these cases, it was accepted that the comment was made on a matter of public interest, were based upon facts and appeared in a context which suggested that they contained opinion rather than fact (Letters to the Editor, for example).

s 7 (1) Wrongs Act
This defence exists where a fair and accurate report of a public meeting is made, provided the report is not made or published maliciously, that it discusses matters of public concern, and that it was for the public benefit that it be published. This argument was made in relation to three of the publications. In all cases Kitchen J accepted that a public meeting had taken place, even though in one case the meeting was a residents' picket at Amelia Park (29). The construction of the bridge was found to be 'a matter of public concern' (29). However Kitchen J found that the publication of the matters discussed was not for the public benefit.

Malice
Malice was only the subject of overt discussion in two of the claims. In each case, Kitchen J found that the evidence provided by the Chapmans did not amount to malice. For example, the Times' failure to check the truth of statements made at a public meeting with the Chapmans did not make a fair and accurate report of that meeting malicious.

Damages awarded
In all, Kitchen J awarded $166 300 in damages, plus costs. Interest on the publications which had been the subject of warnings from the Chapmans soon after the date of their publication was charged from the date of publication. Interest on the other publications was awarded from the date proceedings were commenced.

Appeal
Since Judge Kitchen handed down his judgement in this case on 17 December 1999, an appeal has been lodged in the Supreme Court by Rural Press Ltd, 47/2000.

In these Hindmarsh Island cases the defendants claim that their statements were either true, or constituted fair comment, or were the subject of qualified privilege. However, fighting legal cases is expensive and time consuming. Unfortunately legal aid is not available for such civil cases.

The KLDF asks for financial assistance for costs associated with legal research, court and legal fees.

The KLDF is only providing support for those individuals and community organisations who oppose the building of the bridge, (not commercial media organisations which are also being sued). However, we welcome donations from those who are undecided or who are in favour of the bridge, but who are concerned about the effect of civil litigation on civil liberties.