As part of our campaign for free speech and defamation law reform, Crikey publishes this extensive account of the debate around the decision by a Melbourne Magistrate last Friday to award $40,000 be paid by 3AW to a former One Nation candidate.

PRICE: “Watch the parasites now come out of the woodwork – the whingeing, whining loonies we exposed last time, the gun nuts, the no-hopers, the Johns of Brighton and Ces Hesses of this world. Just when we thought our political debate was cleared of these no talent whackos, they come storming back aided and abetted by political commentators just hungry for some colour.”

Crikey is currently being sued by Price for defamation and contempt of court which was to have been heard in the Victorian Supreme Court this week but has not been adjourned off until next year. Even so, we must be very even-handed and factual in the way we report last Friday’s decision.

Firstly, this is how The Age reported the case on page 3 on Saturday: http://www.theage.com.au/news/national/2001/12/01/FFX9SS0UMUC.html

The Australian reported it on page 10 under the headline “Defamation delivers costly shock to jocks” which combined the story with details of how Price’s stablemate at 2UE, Alan Jones, was ordered to face a Supreme Court jury for five broadcasts alleging that a police officer lied, changed records and acted criminally.

Let the judgment speak for itself

Magistrate Leslie Fleming summed up Ces Hesse’s claim in the following words:

“It is further alleged by the Plaintiff that the words were intended and understood to refer to the Plaintiff and furthermore that the words were meant and understood to mean that the Plaintiff was suffering a psychological condition; not of full mental faculties or capacity; a lunatic; opportunistic and self seeking to the detriment of others; and, a person of no credit, reliability or good reputation.”

And she summed up the defence as follows:

“The Defendants admit the words were stated by the first defendant however the claim of defamation is denied. The Defendants state that it is not possible to understand the words in the sense contended for by the Plaintiff. The Defendants allege that if the Court accepts that the imputations relied upon by the plaintiff are conveyed rather then they would have been understood as a statement of opinion rather than as a statement of fact. The defendants allege the comments are “fair comment”. Furthermore, the Defendants claim qualified political privilege.”

The evidence is too detailed to type out but this is the summary of day two that Crikey sent to subscribers a couple of weeks back:

STEVE PRICE IN THE WITNESS BOX

Crikey popped into Magistrates court number 20 this morning for day two of the defamation case that former One Nation candidate Ces Hesse is bringing against 3AW Drive presenter Steve Price.

The relevant extract was from February 12 this year after the West Australian state election when it appeared that One Nation had quite a bearing on the result:

PRICE: “Watch the parasites now come out of the woodwork – the whingeing, whining loonies we exposed last time, the gun nuts, the no-hopers, the Johns of Brighton and Ces Hesses of this world.”

Hesse was the candidate for One Nation in the seat of Chisholm in the 1998 election and had twice been interviewed by Price on air and had come to his attention again more latterly from a letter to the Herald Sun.

Hesse, himself a retired detective sergeant with the Victoria Police, had a procession of eight character witnesses speaking highly of his reputation including several high ranking police officers, a JP, a former Mayor of the City of Manningham, a company director and the President of the Yarra Valley Kennel Club.

When asked by Crikey wedding guest and well regarded defamation barrister Gina Schoff, counsel for Price, why he didn’t take up the offer from legal firm Corrs Chambers Westgarth to go on air with Price and clear the air, Mr Hesse claimed that during two previous interviews: “I was very badly treated. Even the introduction was shocking.”

Hesse claimed a business offer fell through after the broadcast and that his asthma had flared up again from the stress.

When Price gave evidence, Gina asked him if his title was executive producer and whether he broadcast weekly, and was told the title was program director and he broadcast daily.

There was a good deal of argy bargy about whether the entire one hour transcript and tape was admissible and Magistrate Leslie Fleming ordered that the tape be played in open court so we all sat and listened to Price discussing One Nation for an hour on February 12 this year.

During Gina’s questioning of Price, he explained that he meant to convey the impression that One Nation’s policies were controversial, radical and whacky and he felt their policies in tax, immigration and gun laws were unworkable.

Cousel for Hesse, Michael Wheelahan, then got up and first established that Price was the “number one or two” rating Drive presenter in Melbourne who had 350,000 listeners over a week and an average of 89,000 in any 15 minute period.

We went right through the CV where Price left the Adelaide News as a feature writer and came to the Melbourne Herald in 1980, rising to the position of deputy editor before he left for 3AW in 1987.

Asked if he knew what the difference between a disjunctive and a cumulative expression, Price said: “No I don’t” and when Wheelahan further explained it Price said: “I’m struggling with your explanation.”

Wheelahan then went through the specifics of the offending statement.

Price denied he intended to convey the impression that Hesse was “a whingeing, whining loony”. He denied inferring he was “a gun not” or a “no-hoper”, but when asked if he believed he was “a total whacko”, Price said: “Yes I do”.

When asked what facts he had to support this claim, Price said: “There was no requirement to present any facts, it was an opinion.”

Wheelahan then claimed Price was “reckless, and did not give sufficient thought to the language you use”.

Asked if he was deliberately confrontational, Price said his program has a number of aspects to it and “one of these elements is that it is quite confrontational.”

Asked if he was ever rude to people on air, Price said: “Yes”.

But he denied that he ever belittled people or was offensive.

The final question was whether Price regarded himself as tabloid, and he replied: “I would wear that with a badge of honor. Tabloid in my view means popular.”

How judgment explains Ces Hesse’s political views and background

Crikey missed the first day, but this is how Magistrate Fleming summarised Hesse’s political views and background:

The Plaintiff gave evidence that he was Sri Lankan having migrated to Australia when he was 18 years old. He joined the police force in 1958 and retired from the force in 1982 having attained the rank of Detective Sergeant. Mr Hesse is 66 years of age. Upon retirement Mr Hesse remained active attending the retired police functions on a monthly basis. He would keep in touch with the young members of the force. Mr Hesse was employed as a supervisor working with disabled children for 6 years following which he was a driver for a parliamentarian for about 6 years.

Mr Hesse was a member of the Kennel Control Club, a club for dog breeders and he used to show dogs. Mr Hesse had no prior convictions. Mr Hesse has been married twice and has a son. He is a member of a local church.

Mr Hesse became a member of One Nation in June 1997 and in 1998 Mr Hesse ran for Federal Parliament in the seat of Chisholm as a One Nation candidate. Mr Hesse was a member of One Nation until July 1999 when he ceased being a member.

Mr Hesse ran for Federal Parliament in the seat of Chisholm as a One Nation candidate. Mr Hesse was a member of One Nation because some of the policies appealed to him. He stated that while he was not aware of all One Nation policies the reason he joined was because of the One Nation immigration policy. Mr Hesse wanted an immigration policy that controlled and supervised immigration so that more skilled people would be admitted. Mr Hesse objected to immigration that permitted migrants who did not have skills when there were Australians who were unemployed and the unemployment rate was about 8% or 9%. Mr Hesse said Australia was getting the wrong migrants.

Mr Hesse was unaware of the foreign aid policy of One Nation.

In relation to firearms, Mr Hesse gave evidence that he preferred One Nation’s policy because it was not a knee jerk reaction to the Port Arthur tragedy which is what he considered the Prime Minister’s policy to be. In relation to sporting shooters and clubs Mr Hesse supported the One Nation policy.

Mr Hesse said that while he agreed with some of the things Ms Hanson supported he did not agree with it all. He could not recall whether Ms Hanson called for the abolition of ATSIC and his evidence was that he was sympathetic to the aborginal cause. Mr Hesse said that he was not aware that is was One Nation’s policy to abolish Wik and Mabo.

Mr Hesse stated that multiculturalism does not worry him and that he is an immigrant himself. He was concerned about the Asianisation of Australia but said that he was not racist as he was Asian himself. He said in examination that he could not recall One Nation calling for the abolition of multiculturalism and he was “pretty sure” that the abolition of multiculturalism was not one of the policies. Mr Hesse said that Ms Hanson’s immigration policy was non discriminatory. Mr Hesse said that unemployment was 8% or 9% and that “was rubbery because if you work in a sandwich shop for 2 hours you were considered employed”. He said “it’s silly to bring more people in when unemployment is high and there is a big national debt”.

Mr Hesse was not familiar with One Nation’s tax policy and he conceded that he may have been more familiar with the policies in 1998. Mr Hesse conceded the tax policy was radical but said that Mr Hanson got over one million votes. He also stated that he would support the National Service Policy and that may also be a radical policy.

The judgment

Now, here are some relevant extracts from Magistrate Fleming’s judgment explaining her decision:

On the facts of this case the defendants have not acted reasonably. Mr Price did not have reasonable grounds for believing the imputation was true, while he prepared his editorial prior to presenting it on air he gave no evidence of verifying the accuracy of the material. In fact he knew that Mr Hesse was not a member of One Nation on 30/5/00 which was the last time he had spoken to Mr Hesse. Mr Price made no attempt to confirm this information. Mr Price did not seek a response from Mr Hesse at or near the time of the offending broadcast. While there was an invitation extended to Mr Hesse on 19 March 2001 to be interviewed by Mr Price, Mr Hesse was entitled to decline the invitation given the circumstances. The invitation was one month after the offending broadcast. The bain and antedote must form part of the same publication.

DAMAGES

I find for the Plaintiff and award compensatory damages. An assessment of damages in a case such as this is a vexing question for the court. The damages sought are compensatory (exemplary damages are not sought). The authorities provide a formula to assist with the computation.

“an award of damages must include factors for injury to feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology. What is awarded is a figure which cannot be arrived at by a purely objective computation. That is what is meant when the damages in defamation are large” (Broome v Cassell & Co)

In assessing the damages the court must determine how to assess something that is largely intangible. In order to quantify the intangible I consider that the factors I must consider include the following:

1. The hurt to Mr Hesse. This includes the plaintiff’s health. Mr Hesse did not hear the broadcast at the time of the airing. He was told about it by his friend Mr Cameron, who heard it. Mr Hesse said in evidence, “I was very upset. I felt very bad that Mr Price said these things.” Mr Hesse applied for the tape and collected it and upon collection he sat in his car and listened to it. Mr Hesse’s evidence was that “I was thinking of all the people who need me. I was upset, I was devastated, I was annoyed, how dare he. I hardly knew him. I did nothing to him.” I accept that Mr Hesse’s health suffered as a result of the broadcast.

The hurt to Mr Hesse has also taken the form of a lost business opportunity which I consider was a result of the damage to his reputation and character caused by the broadcast. Mr Lodge made himself quite clear: “As you are no doubt aware, the Security operations at a private hospital must be seen to be above reproach and the very suggestion of controversy must be avoided at all costs. There is, in my opinion, a very real chance that a member of the Hospital Board would associate yourself with the comments made on radio.”

2. Mr Hesse’s age and background. Mr Hesse is 66 years of age. This is relevant because he has achieved a good reputation in the community. He has performed 43 years of service to the community either in his capacity as a police officer or working with disabled children.

3. The defamatory words were spoken. The words were strong words which exposed Mr Hesse to ridicule.

4. The Publication. The broadcast was heard by approximately 89,000 listeners on this State’s top rating radio program at prime time.

5. The apology or absence thereof. The Defendants have not apologised. An invitation, one month after the broadcast, was extended to Mr Hesse to appear on Mr Price’s program which Mr Hesse understandably declined. Even had Mr Hesse appeared on the program in March 2001 and Mr Price had apologised to him then, as the bain and antedote would not have occurred in the one publication it may not be a mitigating factor.

6. Vindication. The damages awarded must reflect that the words were baseless. The amount of the award will reflect the nature and extent of vindication the Plaintiff seeks.

7. In assessing damages I have regard to the decision of Crampton v Nugawela where Acting Chief Justice Mahoney at page 192 stated “the justification for an award for the distress and anguish caused by defamation is the conclusion of right thinking people that that is, in their community, the appropriate measure of compensation.”

Mr Hesse has spent a lifetime developing a fine reputation. He is highly regarded in the community. Mr Hesse received nuisance calls, he had to explain himself at the shopping centre he regularly attends, and to friends and acquaintances due to the “grapevine effect”. Approximately 89,000 listeners would have heard Mr Price’s broadcast. Mr Price’s words were spiteful and hurtful. Mr Price’s words were vitriolic attacks and amount to an attack on Mr Hesse’s reputation, that is on his standing in the world and damages flow from the defamation.

I consider the appropriate award taking into consideration all the factors in all the circumstances is $40,000 for the reasons given.

There will be an order for costs in favour of the Plaintiff.

How the 3AW listeners responded

The judgment sparked a good deal of discussion on Price’s afternoon shift on Friday and Price did not appear to apologise for what he said. These are some of the exchanges he had with listeners:

PRICE: Fleming said I have been vitriolic and had used invective against this One Nation candidate. The comments I made were always intended to be a comment about One Nation, a political comment, a comment about the party and its candidates. It was made after a result in Western Australian that saw One Nation’s vote increase. 3AW is taking legal advice on whether to appeal this case to the Supreme Court. Let’s hope we do?

MARY: And then today, the Magistrate’s court, it’s highest amount of money in its civil jurisdiction that it can award plaintiffs is $40,000 which was awarded to the One Nation candidate. But I suppose if you are looking at the exact definition of fair and reasonable comment, there is a difference, and look I am as anti-One Nation as anyone, but if you are looking at it purely objectively, there is perhaps a difference between criticism, constructive and articulate criticism, and then just name calling and that sort of thing. But I do think this has a big outcome on the likes of yourself and Neil Mitchell and what they can say in the media.

PRICE: No doubt about that.

MARY: I agree with your point that it will have big implications on, well I suppose, the Australian way of being able to say how you feel, whether people agree with you or not.

PRICE: We’ll see what happens in a higher court perhaps Mary. John in Geelong, hello.

JOHN: Hi, I’m just ringing up about the One Nation thing. I am not a regular listener, I’ve only just started listening to you. But I have heard you on a number of occasions where you have been interviewing people about One Nation and I sort of felt that you were a little bit, how shall I say, abusive and insulting on a number of occasions.

PRICE: I don’t like One Nation, I don’t like what they stand for, I don’t like their candidates, I don’t like their leader, I don’t like their policies and I’m glad they got a very small vote in the Federal election and I wish they’d all go away. And that’s my opinion and I’m allowed to have it and I will continue to have it despite today’s judgment.

JOHN: I am not disputing your opinion, what I am saying is that you can disagree with somebody’s point of view and you can argue your case against that point of view but you don’t have to insult people or belittle them in the process. I’ve had arguments with people where I’ve had a completely contrary position but at the end we’ve still agreed that personally there has been no change in our relationship, you don’t have to

PRICE: A marvellous thing about life isn’t it John – we can all be different, thank you.

SHANE: I can’t believe that the court decision went against you because I remember when they said they were genna fix the economy by printing more money so obviously they are whackos and morons and that is all I’ve got to say. See ya mate

PRICE: Good on you Shane, Jacquie in Richmond hello.

JACQUI: I’d just like to say that 3AW and you got what you deserve because all the time you have been bagging One Nation.

PRICE: quite right.

JACQUI: which is fair enough, which is fair enough…

PRICE: See you later Jacqui, away you go Clinton (crosses for tennis update)

ends

Fishing legend Rex Hunt came on for his spot shortly before 6pm and appeared to refer to the judgment with the following comments:

REX HUNT: You don’t say it but what you say in your program is “if I don’t offend you in the first hour, please be patient and I will get rid of”. People out of the goodness of their hearts, Doc, ask this little worm “how are you?”

PRICE: Worm?

REX: And he treats them like garbage. Look, the fact of the matter is Stephen, people actually enjoy you but you actually treat ’em like garbage.

PRICE: I don’t think that’s right.