As if to stomp on The Bulletin‘s grave, ACT’s Supreme Court found last Wednesday that the magazine had defamed Frank Lewincamp, former chief of the Defence Intelligence Organisation, in two articles written by John Lyons in 2004.

“The court found the stories defamed him by stating that he cut the flow of intelligence to Australian troops serving in East Timor in 1999 and abused his position as director,” the ABC said.

The media reported the outcome, but skimped on the detail. And the detail was damning.

Lyons, whose journalistic CV is impressive — Walkley Award winner, former EP of Sunday and editor of The Sydney Morning Herald, now senior writer at The Australian — wasn’t mentioned in last Thursday’s Australian story on the matter of Lewincamp v ACP Magazines. Then again, neither was he mentioned in the brief reports in The Age, The SMH and the ABC, which focused mainly on the $375,000 pay-out rather than the comments on journalistic practice made by Justice Besanko who presided over the case.

Their coyness might be linked to the fact that Lewincamp also has defamation actions in train against the Nine Network, The Age, The Sydney Morning Herald and the ABC in relation to the matter, as The Australian noted.

The complexity of the judgment is impossible to convey here.

In essence, Justice Besanko found that ACP Magazines’ The Bulletin, despite making serious defamatory imputations against Lewincamp, didn’t go far enough to try and establish the truth of those allegations. The publications also contained several errors of fact.

In Besanko’s opinion, in publishing the stories, the defendant “was actuated by an improper motive and therefore malice”. He found that “the improper motive was a desire to publish a sensational story and thereby enhance the reputation of the magazine and the author of the articles, and to increase the circulation of the magazine.”

As for some of the allegations, Besanko noted that, “I think the defendant was at least wilfully blind as to the truth or falsity of the imputations.”

He did note, however, “I do not think there was any particular desire to injure the plaintiff”.

In setting up his judgment, Besanko J observed the apparently unquestioning way in which The Bulletin provided one side of a difficult story to the clear detriment of the other. The two articles, he said, pitted an “army hero” against “the systemic failures of the nation’s intelligence gathering”. The publications relied on accounts that were known to be contentious and debated, presenting them as unchallenged fact.

One of these accounts came from naval reserve captain Martin Toohey who had conducted an internal review of complaints made by former army intelligence expert Lieutenant Colonel Lance Collins against the DIO. In June this year, Lewincamp successfully sued Toohey for defamation over comments he made to The Bulletin that Australian lives had been put in jeopardy by the politicisation of the DIO.

In its Lewincamp matter, ACP Magazines didn’t call any witnesses, which made it difficult for Besanko J to establish the truth of its imputations. But based on the evidence presented to him, he deemed “none of the imputations, which I have found were conveyed, to be true.”

Of concern to the Judge was the fact that the “defendant did not seek a response from the plaintiff before the first and second publications”. There was no reason not to contact Lewincamp ahead of deadline, said Besanko. Further, because of the seriousness of the imputations, this “is not a case where it can be said that it was unnecessary for the defendant to give the plaintiff an opportunity to respond.”

The defence of qualified privilege was raised — and dismissed, the defendant having failed, in Besanko’s eyes, to demonstrate reasonable care in the matter.

Neither was the case for the story being in the public good established. It is “very difficult to conclude that a defendant, who was wilfully blind as to the truth or falsity of important imputations in the publications, namely, the distortion of intelligence assessments issued by DIO could, at the same time, be found to have made the publications for the public good,” said Besanko.

As yet, ACP Magazines hasn’t said it will appeal the matter. A hearing as to costs will take place this Friday.

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Peter Fray
Peter Fray
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