Amalgamated Television Services Pty Ltd v Marsden - [2002] NSWCA 419

NEW SOUTH WALES SUPREME COURT

CITATION: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

CURRENT JURISDICTION:

FILE NUMBER(S): 40505/99
40499/01

HEARING DATE{S): 8 April 2002, 9 April 2002, 10 April 2002, 11 April 2002, 15 April 2002, 16 April 2002, 17 April 2002, 18 April 2002, 22 April 2002, 23 April 2002, 19 September 2002

JUDGMENT DATE: 24/12/2002

PARTIES:
Amalgamated Television Services Pty Limited
John Robert Marsden

JUDGMENT OF: Beazley JA Giles JA Santow JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20223/95
20592/96

LOWER COURT JUDICIAL OFFICER: Levine J

COUNSEL:
W H Nicholas QC/R R Stitt QC/K A Rees (A)
B W Walker SC/M B J Lee (R)

SOLICITORS:
Malleson Stephen Jacques (A)
Marsdens Law Group (R)

CATCHWORDS:
DEFAMATION - justification - substantial truth
DEFAMATION - qualified privilege - reasonableness - 'Lange' defence - malice - reckless indifference - lack of honest belief - improper motive
DEFAMATION - damages - harm to reputation - lifestyle - injury to feelings - plaintiff not giving evidence
DEFAMATION - damages - psychiatric injury
DEFAMATION - exemplary damages
APPEAL - credit based findings - 'Abalos' principle
STANDARD OF PROOF - civil case - grave allegations - evidence act s140
INDENTIFICATION EVIDENCE - civil case
CORROBORATION - civil case - allegations of criminal conduct
ADMISSION BY CONDUCT - interfering with witnesses - lies
COSTS - offer of compromise in defamation case - interest

ACTS CITED:
Crimes Act 1900 (NSW), s 333
Criminal Procedure Act 1986 (NSW) s 24A
Defamation Act 1974 (NSW) ss 7A(4), 15(2), 16, 22
Evidence Act 1995 (NSW) ss 32, 48, 135, 140, 164(1), 165
Listening Devices Act 1984 (NSW), ss 3, 5, 13, 16, 19
Police Integrity Commission Act 1996 (NSW), s 56(4)(c)
Supreme Court Act 1970 (NSW), s 94
Supreme Court Rules Pt 37 r 2, Pt 51 r 23(1)

DECISION:
No substantive orders at this time. Stood over for mention on 14 February 2003

LAST UPDATED: 24/12/2002

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA     40502/99
CA     40499/01
CL      20223/95
CL      20592/96
BEAZLEY JA
GILES JA
SANTOW JA
Tuesday, 24 December 2002

AMALGAMATED TELEVISION SERVICES PTY LIMITED v MARSDEN

The appellant broadcast on the Today Tonight programme what it claimed to be the result of an investigation of allegations of paedophilia in New South Wales. Fourteen months later the appellant broadcast on the Witness programme what it claimed to be the result of a second investigation on the same subject matter. The respondent was named and accused in both programmes as having engaged in sexual activities with boys under the age of 18.
The respondent commenced proceedings in relation to alleged defamatory imputations arising from the two programmes. A jury found a number of defamatory imputations to have been made concerning the respondent in the two programmes. The gravamen of the imputations was that the respondent knowingly had sexual intercourse with boys under the age of 18, and in one case, a boy aged 15.
Following this verdict the trial judge conducted a hearing as to the appellant’s defences, broadly classified as justification and qualified privilege defences, and the assessment of damages. He concluded that the defences failed, and assessed damages and awarded interest on the damages. He ordered the appellant to pay the respondent’s costs, in part on an indemnity basis.
On appeal the appellant challenged the findings in relation to the justification and qualified privilege defences, as well as the assessment of damages (as being too high) and the indemnity costs. The respondent cross-appealed challenging the assessment of damages (for omitting relevant heads of damages and as being too low) and the interest on the damages.
HELD
Justification
(i) The success of the justification defences depended upon the credibility of the witnesses called to prove the substantial truth of the imputations.
(ii) There was no appellable error in the trial judge’s approach to the assessment of the evidence of the witnesses or in the application of legal principles.
(iii) There was no appellable error in the trial judge’s rejection of the evidence of the witnesses.
(iv) The trial judge did not err in rejecting the New South Wales and interstate justification-based defences
Consideration of -
  (a) principles of appellate review of trial judge’s credit-based findings;
  (b) standard of proof of grave allegations (Bringinshaw and Evidence Act s 140);
  (c) principles governing identification evidence in a civil case and the extent to which assistance may be found in criminal law authorities;
  (d) the role of corroboration in a civil case -
  (i) the extent to which assistance may be found
in criminal law authorities (Longman analogy);
(ii) the approach to the assessment of alleged

corroborative evidence;
  (e) proof of knowledge in a civil case involving allegations of a criminal nature;
  (f) admissions by conduct;
  (g) exercise of discretion in the discharge of a witness who refuses to give further evidence;
  (h) the approach to the evidence of such a witness;
  (i) exercise of discretion in refusing leave to re-open, including the question of substantial miscarriage of justice.
Qualified Privilege
(v) The trial judge did not err in finding that the appellant’s conduct in publishing the imputations was unreasonable and so not entitled to statutory qualified privileges in New South Wales or interstate or Lange common law privilege.
(vi) The trial judge did not err in holding that the imputations were not published on non-Lange occasions of common law qualified privilege.
(vii) The trial judge erred in his approach to the question of malice. The defence of common law qualified privilege is denied, inter alia where there is the presence of an improper motive which actuated the publication of the defamatory matter, so constituting malice. Mere absence of an honest belief or reckless indifference as to truth or falsity, falling short of wilful blindness, are not by themselves sufficient to establish an improper motive. Malice was not established for the Today Tonight programme, but was established in relation to the Witness programme.
(viii) Nonetheless, since the occasion of publication of the Today Tonight programme was not one of non-Lange common law privilege, the trial judge did not err in holding that the qualified privilege defences failed.
Consideration of -
  (a) failure to make basic enquiries in relation to reasonableness, reckless indifference and honest belief;
  (b) application of Lange and Reynolds;
  (c) response-based common law qualified privilege;
  (d) reckless indifference, lack of honest belief and improper motive for the purposes of malice;
  (e) public interest, public benefit and good faith where relevant to interstate legislation.
Damages
(ix) The trial judge did not err in his approach to the assessment of ordinary compensatory damages.
(x) The trial judge erred in holding that in the absence of evidence of injury to feelings from the respondent he could not award aggravated damages for injury to feelings.
(xi) The trial judge erred in not awarding exemplary damages in relation to the Witness programme; the Court assessed exemplary damages.
(xii) Since by reason of (x) and subject to further submissions from the parties there should be a reassessment of compensatory damages, the issues of indemnity costs and interest on the damages should not be decided; but there was no error in holding that an offer of compromise served by the respondent attracted the operation of Pt 52A r22(4) of the Rules.
Consideration of -
(a) exercise of discretion in refusing to depart from “normal” course of trial;
  (b) proof of injury to feelings where the plaintiff does not give evidence of injury to feelings – ordinary and aggravated compensatory damages;
  (c) diminution of reputation with regard to character and lifestyle;
  (d) whether trial judge’s findings adverse to the plaintiff can be taken into account in diminution of reputation;
  (e) enhancement of extent of publication by the litigation;
  (f) qualification to give opinion as to psychiatric injury;
  (g) the award of exemplary damages;
  (h) new trial on limited issues;
  (i) principles for interest on damages for reputation;
  (j) offers of compromise in proceedings for defamation.

ORDERS
No substantive orders at this time. Appeal and cross appeal to be listed for further mention at 9.30am on 14 February 2003, exchange of statement of orders to be made as directed and submissions for further conduct of the matter.
Table of Contents
Page

JUSTIFICATION............................................................................................................................................................... 7

Introduction................................................................................................................................................................... 7
The Respondent’s Modus Operandi....................................................................................................................... 10
Issues on the Appeal................................................................................................................................................. 12
General Errors in Self Direction................................................................................................................................. 14

Application of a criminal law standard of proof................................................................................................ 14
Application of a criminal law standard of proof to the issue of identification............................................. 15
Application of a criminal law standard of proof to the issue of corroboration............................................ 18
Application of “an inappropriately high” standard of proof/gravity of the allegations............................. 21
Seeking guidance from the criminal law when dealing with the issue of knowledge.................................. 23

Modus Operandi; Tendency Evidence................................................................................................................... 24
Admissions by Conduct............................................................................................................................................ 27
Appellate Review........................................................................................................................................................ 30

HOMES............................................................................................................................................................................. 33

Identification Evidence.............................................................................................................................................. 35
Rejection of Homes as a Witness of Credit............................................................................................................ 38
The Costello’s Evidence............................................................................................................................................ 39
Respondent’s Credit.................................................................................................................................................. 42
Inconsistency Within Trial Judge’s Credit Findings............................................................................................ 44

Conclusion................................................................................................................................................................... 46

LILBURN.......................................................................................................................................................................... 47

Intimidation of the Witness...................................................................................................................................... 50
Discharge of the Witness.......................................................................................................................................... 58

Weight to be given to the witness’ evidence.................................................................................................... 59
Opportunity for the witness to give evidence................................................................................................... 60

Error in Dismissing the Pimping Allegations as Irrelevant................................................................................... 65
Admissions by Conduct............................................................................................................................................ 68
Respondent’s Credit.................................................................................................................................................. 70

D20.................................................................................................................................................................................... 71

Background................................................................................................................................................................. 73
Date D20 Went to Cairns........................................................................................................................................... 76
Failure to Give Proper Weight to Other Evidence in Determining Whether to Accept D20’s Testimony.... 80
The Appellant’s Conduct of the Case..................................................................................................................... 90
The ATM Evidence.................................................................................................................................................... 96
Finding That D20 Was a Liar and a Fabricator...................................................................................................... 98
Lack of Reasons.......................................................................................................................................................... 98

Informer...................................................................................................................................................................... 100
Credibility Findings in Relation to Pseudonym Order........................................................................................ 104
Conversations with Fellow Inmates....................................................................................................................... 105
Identification Evidence Relating to D20................................................................................................................ 106
Inconsistent Treatment of Credibility of Witness............................................................................................... 106
Failure to Weigh the Respondent’s Credit........................................................................................................... 110
Conclusions re D20.................................................................................................................................................. 110

D18.................................................................................................................................................................................. 111

Knowledge................................................................................................................................................................. 112
D18’s Evidence......................................................................................................................................................... 118
Rainey and Bailey..................................................................................................................................................... 120
Inconsistent Approach to Evidence...................................................................................................................... 137
Trial Judge’s Approach to Respondent’s Credit................................................................................................. 143
Failure To Deal Properly With Admissions By Conduct................................................................................... 143
Conclusion on D18................................................................................................................................................... 146

STEVENS........................................................................................................................................................................ 146

Identification............................................................................................................................................................. 148
Conclusion on Identification Evidence................................................................................................................. 157
Modus Operandi Argument.................................................................................................................................... 158
Failure to Make Adverse Credit Finding Against the Respondent.................................................................. 160
Conclusion on Stevens............................................................................................................................................ 165

ELOMARI...................................................................................................................................................................... 166

Refusal of Application to Re-Open to Tender the Elomari Tape....................................................................... 169

First View of Refusal of Re-opening Application........................................................................................... 202
Second View of the Re-opening Application.................................................................................................. 204

Discretionary Considerations................................................................................................................................. 208

If there is appellable error should this Court interfere?.................................................................................. 208
Best Evidence Rule.............................................................................................................................................. 209
Whether Substantial Wrong or Miscarriage Caused by Refusing the Re-opening Application............ 214
Tapes as Corroboration of Elomari’s Evidence........................................................................................... 215
Tape as Contradicting the Respondent’s Evidence................................................................................... 224
Tape as Undermining the Respondent’s Credit.......................................................................................... 228
Tape as Supporting Evidence of Other Witnesses in Relation to Payment of Money After the Case was Over 233

Conclusion on the Elomari Tape............................................................................................................................ 239

CONCLUSION ON JUSTIFICATION........................................................................................................................ 240

The Respondent’s Credit........................................................................................................................................ 240

The Martin/Marsden allegations: items (a) to (c)........................................................................................... 243
The unlawful use of marijuana: item (d)............................................................................................................ 245

Finding that the respondent had never heard of Costello’s: item (e).......................................................... 245
False evidence as to engaging Les Murphy: item (h).................................................................................... 246
False evidence as to Campbelltown Court....................................................................................................... 246

Inconsistent Treatment of Witnesses................................................................................................................... 248
D20.............................................................................................................................................................................. 250

JUSTIFICATION IN RESPECT OF PUBLICATION IN STATES AND TERRITORIES OF AUSTRALIA OTHER THAN NSW 251
CONTEXTUAL JUSTIFICATION.............................................................................................................................. 252
QUALIFIED PRIVILEGE.............................................................................................................................................. 254

Introduction............................................................................................................................................................... 254

(a) Defence under s22 Defamation Act 1974 (NSW)............................................................................... 254
(b)     common law Privilege: the Lange basis.............................................................................................. 255
(c)      common law Qualified Privilege: the “response” basis................................................................... 255
(d)     common law Qualified Privilege: the Reynolds basis....................................................................... 255
(e)      Qualified Privilege in respect of publications in States and Territories of Australia other than New South Wales    255
(f)      Malice....................................................................................................................................................... 255

Overview - Qualified Privilege - Defence under s22 Defamation Act 1974 (NSW)..................................... 261
Grounds of Appeal................................................................................................................................................... 272
Specific Grounds of Appeal.................................................................................................................................... 280

Appeal Grounds 55, 57 and 58 other than Superintendent Small and Dunbier.......................................... 280
Grounds 55, 57 and 59 - Superintendent Small............................................................................................. 307
Appeal Ground 58 - Superintendent Small..................................................................................................... 312
Appeal Grounds 57 and 60 - Dunbier.............................................................................................................. 314
Mrs Diedre Grusovin and Mr Colin Fisk.......................................................................................................... 321
Grounds of Appeal 55 and 62 – general grounds........................................................................................... 323
Failure to make certain enquiries....................................................................................................................... 327
Appeal Ground 61 - Opportunity to Respond for purposes of s22(1)(c).................................................... 332
Appeal Ground 56 - Belief that the imputations were true............................................................................. 342
Appeal Ground 63................................................................................................................................................ 347
Appeal Grounds 64, 70, 71 and 72..................................................................................................................... 347
Appeal Ground 65: Russell................................................................................................................................ 366
Appeal Ground 66: respondent’s denials and publication without his response..................................... 371
Appeal Ground 68: Enquiries............................................................................................................................ 377
Appeal Grounds 67 and 69: Honest belief of the journalists........................................................................ 381
Appeal Ground 73: Generally as to reasonable conduct............................................................................... 384

COMMON LAW QUALIFIED PRIVILEGE: THE LANGE BASIS........................................................................ 386

Appeal Grounds 74 to 79 - To-day Tonight programme and Witness programme........................................ 386
Conclusion – Appeal Grounds 75 to 79................................................................................................................ 394

COMMON LAW QUALIFIED PRIVILEGE - REYNOLDS BASIS: Appeal Grounds 89 to 91....................... 394
COMMON LAW QUALIFIED PRIVILEGE: THE “RESPONSE” BASIS............................................................. 396

Appeal Grounds 80 to 88: To-day Tonight and Witness programmes............................................................. 396

MALICE - APPEAL GROUNDS 104 TO 114............................................................................................................ 420

To-day Tonight: appeal grounds 104 to 108........................................................................................................ 420

Witness - Appeal Grounds 109 to 114................................................................................................................... 430
Qualified Privilege in respect of publication in States and Territories of Australia other than New South Wales: appeal grounds 92 to 103...................................................................................................................................................................................... 439

OVERALL CONCLUSION – INTERSTATE DEFENCES........................................................................................ 450
OVERALL CONCLUSION – QUALIFIED PRIVILEGE............................................................................................ 451

DAMAGES.................................................................................................................................................................... 452

Damages for Defamation in General....................................................................................................................... 453
Ordinary Compensatory Damages: Injury to Feelings....................................................................................... 457

a) The rulings....................................................................................................................................................... 457
b) The weight given to the other evidence..................................................................................................... 466

Ordinary Compensatory Damages: Harm to Reputation................................................................................... 474

a) Damage to Reputation................................................................................................................................... 475
(i) Lifestyle....................................................................................................................................................... 476
(ii) Adverse Findings..................................................................................................................................... 484
b) The Worst Kind.............................................................................................................................................. 490
c) The Extent of Publication.............................................................................................................................. 491

Ordinary compensatory damages – Psychiatric injury....................................................................................... 494
Aggravated Compensatory Damages................................................................................................................... 514
Exemplary Damages Outside New South Wales.................................................................................................. 523
The Position Thus Far............................................................................................................................................. 534
Overall Excess or Insufficiency of the Damages.................................................................................................. 542
INTEREST ON DAMAGES..................................................................................................................................... 546

COSTS........................................................................................................................................................................ 553

a) The claims to which the offers related......................................................................................................... 555
b) Order otherwise.............................................................................................................................................. 560

ORDERS......................................................................................................................................................................... 562

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA     40502/99
CA     40499/01
CL      20223/95
CL      20592/96
BEAZLEY JA
GILES JA
SANTOW JA
Tuesday, 24 December 2002

AMALGAMATED TELEVISION SERVICES PTY LIMITED v MARSDEN

JUDGMENT

THE COURT: On 25 February 1999, a jury found that the appellant defamed the respondent by the broadcast of two television programmes, the first on 13 March 1995 on the programme Today Tonight [J 51] and the second on 7 May 1995 on a segment of the programme Witness entitled “The Dark Side” [J 5].
The genesis of the allegations against the respondent, for the purposes of these proceedings, was a statement made under parliamentary privilege by Deirdre Grusovin, a member of the Legislative Assembly of the New South Wales Parliament, on 1 December 1994. That statement was based upon a statutory declaration made by one Colin Fisk (Fisk), a convicted paedophile, in which Fisk alleged that the respondent was a pederast. Fisk subsequently withdrew the allegation.
The first programme containing the defamatory imputations was a Today Tonight “special investigation” of the respondent and his alleged sexual conduct with “under age” boys. “Under age” meant a boy under the age of 18 years at the time of the alleged sexual encounter. The programme contained interviews with two persons, whose names were suppressed and images obscured, making allegations of under age sex against the respondent. The unidentified persons in the programme were Ronald James Kinchela and John William Pearce, both of whom gave evidence in the proceedings. The programme also reported the allegations made in State Parliament by Deidre Grusovin. Fisk’s retracting statutory declaration was also broadcast as part of the programme [J 2].
The Witness programme, entitled The Dark Side also involved an investigation of the respondent. It contained interviews with three males who alleged they had been the “prey” of the respondent and discussed the paedophile activities that took place in Kings Cross in the 1970s and early 1980s, particularly at Costello’s Nightclub which the respondent was said to have patronised. The programme went on to allege a link between the paedophile activity and serious crimes later committed by the victims. Reference was again made to the allegations made against the respondent in State Parliament by Ms Grusovin [J 5-12].
The respondent commenced defamation proceedings against the appellant on 14 March 1995 in respect of the Today Tonight programme and on 13 June 1996 in respect of the Witness programme. The actions were heard together.
The imputations found to have been carried and to be defamatory in the Today Tonight programme were [J 1]:
“1(a)    The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18.
3(a)     The plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff.”
The imputations found to have been carried and to be defamatory in the Witness programme were [J 13]:
“1(a)    The plaintiff has had sexual intercourse with 15 year old boys, having deliberately refrained from asking those boys how old they were.
2(a)     The plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were.”
Following the jury verdict, the defences of justification and qualified privilege and the respondent’s claim for damages were heard and determined by Levine J pursuant to s 7A(4) of the Defamation Act 1974 (NSW). His Honour rejected both defences and awarded the respondent general damages in the sum of $275,000 in respect of the Today Tonight programme and $250,000 in respect of the Witness programme. His Honour rejected the respondent’s claim for aggravated and exemplary damages.
Both parties appeal against his Honour’s determinations.
The appellant appeals against the rejection of the defences and the quantum of damages awarded. It contends that even if his Honour was correct in rejecting the defences of justification and qualified privilege an award of nominal damages only should have been made.
The respondent cross-appeals against the trial judge’s award of damages. Specifically, he alleges that his Honour erred in failing to award, as part of his claim for general damages, damages for psychiatric injury; that in any event the general damages awarded were inadequate to properly compensate him for the injury to his reputation; that his Honour should have awarded both aggravated and exemplary damages; and that the interest rate used by his Honour was incorrect: see s 94 of the Supreme Court Act 1970 (NSW).

JUSTIFICATION
Introduction

The appellant pleaded in its defence that each of the imputations was justified. For the purposes of the law in New South Wales, the defence of justification is only made out if it is established that the imputation is a matter of substantial truth and the imputation either relates to a matter of public interest or is published under qualified privilege: Defamation Act s 15(2). The appellant also relied upon s 16 of the Defamation Act, that is, whether there is substantial truth in contextual imputations. A defendant bears the onus of establishing the defence. The “justification issue” before Levine J in the present proceedings was the substantial truth of the imputations. There was no issue that the matter published was a matter of public interest [J 106]. As the programmes were also shown in other states in Australia the appellant pleaded the justification defences applicable in those States.
The appellant relied in its justification case upon the evidence of eleven witnesses, all of who alleged they had either had underage sex or had witnessed the respondent engage in underage sex. For the most part the justification witnesses were unknown to each other. They each had extensive criminal histories and many had had significant problems with substance abuse.
The appellant sought to advance its case through these witnesses on the basis that there were common features of the sexual encounters, which it was said, amounted to a “modus operandi” whereby the respondent solicited boys at various known homosexual “beats” or “pick up” places and engaged in sex either at his home at Campbelltown, at hotels or at a well-known nightclub in Kings Cross, Costello’s, which was frequented by homosexuals.
The appellant also sought to prove its justification defence by relying upon conduct of the respondent which it alleged amounted to an admission in respect of certain witnesses that his case was a weak one or was unfounded: see Wigmore: 3^rd ed (1940) Vol 2 para 278; R v Watt (1905) 20 Cox CC 852. The respondent’s conduct said to amount to an admission (to the extent that it was an issue in the appeal) was his alleged attempt to suborn witnesses or potential witnesses to commit a “wrongful act” such as giving false evidence [J 39-J 44]; and having a witness make a statutory declaration which was false [J 46].
Levine J’s rejection of the justification defence involved a rejection of the justification witnesses as witnesses of credit. The respondent submitted that the appellant’s justification case was dependent upon the trial judge’s acceptance of its witnesses. That, as the appellant submitted to the trial judge, involved “a contest of credit between … [the respondent] … on the one hand and the [appellant’s] justification witnesses on the other”. The respondent pointed out that his Honour’s finding meant the appellant had “lost the contest” [RS 2] and that those findings are protected by the application of the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; Rosenberg v Percival (2001) 205 CLR 434 at 448. We will, for the purpose of these reasons, refer to the principles enunciated in these cases as the Abalos principle.
The respondent submitted that the well known exceptions to the limitations placed upon an appellate court’s interference with a trial judge’s credit findings have not been established. The appellant submitted that this was a case where appellate interference is warranted because there was incontrovertible evidence which supported contrary findings to those made by his Honour. In large measure, the appellant relied upon the components of what was referred to as the respondent’s modus operandi in support of this argument. Before further explaining that concept, and because the Abalos principle forms an essential backdrop to this appeal it is appropriate to refer to it in a little more detail.
The essence of the principle is that an appellate court faces considerable restraint in interfering with the credit based findings of a trial judge. In Devries, Brennan, Gaudron and McHugh JJ said at 479:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact (Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was ‘inconsistent with the facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ (Brunskill (1985) 59 ALJR at 844; 62 ALR at 57).”
Deane and Dawson JJ pointed out at 480, however, that the appellate court’s duty itself to weigh the evidence, draw inferences and reach conclusions was not displaced merely by a demeanour finding and could not be explained away by “any short exhaustive formula”. More relevantly for present purposes, they had earlier observed at 479-480:
“An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge’s assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The ‘value and importance’ of that advantage ‘will vary according to the class of case, and, … [the circumstances of] the individual case’ (Watt (or Thomas) v Thomas [1947] AC 484 at 488 per Lord Thankerton).
If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant.”

It follows that an appellate court cannot reverse the findings of a trial judge unless satisfied that the advantage of having seen the witness could not be sufficient to explain or justify the trial judge’s conclusion. In Rosenberg v Percival at 448 McHugh J emphasised the protected nature of credit based finding, especially those founded essentially on demeanour:
“One of the consequences of the “advantage” of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors — credibility, matters for and matters against — that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury.”
The Respondent’s Modus Operandi
It was common ground in the proceedings that the respondent, a prominent solicitor in this State, is homosexual and openly so and is admittedly promiscuous in the sense that over the years he has engaged in sexual activities with a number of persons (referred to in the proceedings as ‘casual sex’), including males he had picked up at known homosexual ‘beats’.
The respondent agreed that when picking up a male at a beat, he would not know their age [T 6946]. He denied that there was any risk in picking up an underage person “unless you are dumb and can’t see for yourself what you are looking at” [T 6948]. He agreed that the issue of age only became relevant in 1984 when adult homosexual engagements were removed as an offence from the statute books [T 6948].
According to the appellant, the respondent’s sexual conduct was said to involve a number of common features or involve a modus operandi. That modus operandi was as follows:
(i) the respondent engaged sexual partners at a ‘beat’, meaning he visited a pickup area to find a sexual partner;
(ii) they drove in his Mercedes Benz, usually driven by a chauffeur, to the respondent’s home at Campbelltown;
(iii) at his home, the chosen partner was taken upstairs to the respondent’s bedroom;
(iv) marijuana, which the respondent kept in a drawer in his bedside table and at one stage in an alcove in the walk-in wardrobe was smoked.
(v) the respondent used amyl nitrate during the sexual activities. It was kept in a drawer beside the bed;
(vi) the partner stayed the night and was driven to the railway station the following morning;
(vii) on occasions the partner was given a sum of money by the respondent when he was dropped off at the railway station.
The appellant argued that his Honour failed to give proper weight to this evidence. It was submitted that had he done so and then assessed the totality of the evidence including his findings on credibility in respect of both the respondent’s witnesses and the appellant’s witnesses, it was likely he would have reached a different conclusion and found that the imputations were proved.

Issues on the Appeal

The appellant challenges his Honour’s determination in 146 grounds of appeal. As might be expected with such a multiplicity of grounds, overlapping is inevitable. Accordingly, for the purposes of determining whether any of his Honour’s findings involve appealable error, it is convenient to adopt the course proposed by the appellant of dealing with the alleged errors in categories. This categorisation, in part at least, follows the format of his Honour’s judgment whereby his Honour dealt with the general issues involved in the case and gave himself a number of directions in relation to those issues before he dealt with the individual justification witnesses.
The alleged errors may be categorised as follows:
(i) General errors in self-direction. The appellant alleges that his Honour erred in the manner in which he dealt with the following issues or in applying the following concepts to his consideration of the issues:
(a) in applying a criminal law standard of proof, particularly in dealing with the issues of ‘identification‘ and ‘corroboration’;
(b) in applying an “inappropriately high standard of proof”;
(c) in inappropriately seeking guidance from the criminal law when dealing with the issue of ‘knowledge’.
(ii) Particular errors in relation to individual witnesses.
(iii) Errors in methodology. The appellant alleges that his Honour’s fact finding method was flawed in that he failed to pay regard to the whole of the evidence and failed to have regard to the cumulative effect of the evidence when determining the justification defence in the following respects:
(a) wrongful segmentation of the evidence by treating each justification witness separately, without having regard to evidence of other witnesses or the respondent’s own admissions which may have been relevant to his assessment of the evidence of a particular witness.
(b) adopting a “two stage approach” to his fact finding task in respect of individual witnesses in the sense that he first determined whether a particular justification witness’s evidence was credible, and then used his invariably adverse conclusion in respect of that evidence to impeach any corroborative evidence: Gamaethige v Minister for Immigration [2001] FCA 565.
(c) failing to give weight to the admissions by conduct.
(d) there was an imbalance in his Honour’s assessment of the weight to be given to the evidence of the justification witnesses as compared to the weight given to the respondent’s evidence and that of the witnesses called in the respondent’s case.
(e) misusing the modus operandi argument so as to make an adverse finding of credit if a witness’s account did not correspond with the relevant components of the modus operandi. This allegation included an allegation that his Honour erroneously failed to have regard to the consistencies in the evidence of the justification witnesses and between those witnesses and the evidence of the respondent: see Martin v Osborne (1936) 55 CLR 367 at 375; Cross on Evidence 6^th Ed at 21284; but conversely, emphasised the inconsistencies in the evidence of the justification witnesses [AS 29-30].
The consequence of his Honour’s flawed methodology, on the appellant’s argument, was that his Honour fell into appealable error in his assessment of the credit of the justification witnesses and failed to make appropriate findings in relation to the credit of the respondent and the witnesses in his case.
General Errors in Self Direction
Application of a criminal law standard of proof
The appellant submitted that the trial judge failed to apply the appropriate standard of proof in determining whether the appellant’s justification defence had been made out. In Rejfek v McElroy (1965) 112 CLR 517 the Court at 521 emphasised that:
“[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”
There is no suggestion in his Honour’s reasons that he misunderstood the standard of proof he was required to apply either generally or in relation to particular evidence. He said at J 24:
“This is a civil case. The [appellant] has pleaded the defence of ‘justification’ and the burden of proof rests on [the appellant]. As this is a civil case, the standard of proof is the ‘balance of probabilities’. That which the [appellant] has to prove in its defence of justification is the substantial truth of ‘grave allegations’. There is no escaping the allocation to those allegations (as captured by the found imputations) of the description ‘criminal conduct’. However, any such description cannot derogate from the application of the civil standard of proof: see Refjek v McElroy.” (emphasis added)
In stating his conclusion in respect of, for example, Homes’ evidence, his Honour said [J 626]:
“… considering all the evidence in relation to this so-called incident, the [appellant] has failed to persuade me on the balance of probabilities that what Mr Homes says took place between [the respondent] and his brother Les Murphy has not (sic) been proved to be the fact.” (emphasis added)
The appellant also relied on his Honour’s references to the criminal law in a number of his interlocutory judgments. For our part, we consider that our point of reference should be his Honour’s judgment under appeal. But in any event, as our considerations in relation to this judgment demonstrate, a reference to or even seeking guidance from the criminal law does not involve the application of a criminal standard of proof. Accordingly, we do not consider there is any point of substance in this part of the appellant’s submission.
Application of a criminal law standard of proof to the issue of identification
The positive identification of the respondent as having been engaged in specific incidences of underage sex was crucial to the appellant’s justification case. His Honour took the view that the principles which govern evidence of identification in criminal trials provided guidance to a judge in a civil trial “in considering the reliability and weight of any evidence on this issue by itself, together with the nature of other evidence” [J 88]. In particular, his Honour considered that given the well known dangers inherent in identification evidence, it was appropriate to give himself directions cognate with the directions which would be given at common law to a jury in a criminal trial.
His Honour referred in particular to Domican v The Queen (1992) 173 CLR 555, where the High Court stated at 562:
“The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’ … It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.”
The Court further stated at 565-566 that in determining whether a warning to the jury had been adequate, it was necessary to consider “the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident, and the identification and the nature and circumstances of the first identification”.
To like effect is the statement In Cross on Evidence (Australian Edition), at para 1400 where the author points out that the warning as to identification evidence which should be given to a jury depends upon the circumstances of each case and the warning given in any given case:
“usually discusses the opportunities of identification which the witness had – the position of the witness and the person identified, the light, the exposure of the witness to stress or fear or the like – and the perceptiveness of the witness: R v Clune [1982] VR 1 (FC); R v Dickson [1983] 1 VR 227 (FC).”
The appellant submitted that his Honour’s reliance on the criminal law in his approach to identification evidence “was unduly restrictive”. More importantly it alleged that in applying those principles his Honour failed to determine the issue of identification on the balance of probabilities. [AS 100]
The appellant further contended that the trial judge, rather than taking the identification evidence of each individual witness and giving consideration to the weight of that testimony in context, including whether or not the witness was cross-examined or challenged on the identification evidence “adopted an inflexible approach based on criminal law”.
In this case, however, the identification evidence itself was an integral part of the credit challenge to Homes’ evidence. This was also the case in respect of Lilburn and D18. It was appropriate, therefore, for the trial judge to deal with the identification evidence in the context of the overall credibility of the witnesses.
So far as we are aware, there is no direct authority as to whether his Honour’s approach in seeking guidance from the criminal law was correct. Certainly, the same principles apply in a criminal trial without a jury: Grbic v Pitkethly (1992) 38 FCR 95. In that case, Sheppard J said (at 103) this was so with one qualification, namely that in a jury trial, identification evidence may be rejected because of its unsatisfactory nature, whereas in a trial without a jury identification evidence remained admissible even if it was unsatisfactory and it was a question of the weight and significance to be given to the evidence at the end of the case. See also Sharrett v Gill (1993) 65 A Crim R 44; Parker v Espinoza (1996) 85 A Crim R 366.
The principles upon which his Honour relied were principles derived from the criminal law, which is the area where identification evidence is most contentious. However, there is always a risk that identification evidence, whether in a criminal or a civil trail, may be unreliable. This has now been recognised by statute in the Evidence Act 1995 (NSW) s 165 (1)(b). Although criminal law references are the source of the passage in Cross on Evidence to which we have referred, this passage, like the passage in Domican v R, to which we have also referred, provides reasons why identification evidence may be unreliable – reasons which may be equally applicable to identification evidence in a civil trial, subject to their being considered according to the appropriate standard of proof. Accordingly, we do not consider that by reference to the principles stated in the criminal law his Honour applied any wrong principle.
We see nothing in his Honour’s statement of his approach to the identification evidence to indicate that he applied any wrong principle or the wrong standard of proof. Accordingly, we reject these aspects of the appellant’s challenge to his Honour’s findings.
As we have said, the real issue in identification evidence is its reliability. It is not a credit issue per se. That is so whether the case is a civil or a criminal one. An honest witness may not give reliable identification evidence. The warnings to the jury are directed to ensuring that they are satisfied that the identification evidence is reliable. As Mason J pointed out in Alexander v The Queen (1980) 145 CLR 395 at 426:
“Identification is notoriously uncertain. It depends upon so many variables. They include [relevantly for this case] … the vagaries of human perception and recollection.”
Application of a criminal law standard of proof to the issue of corroboration
In New South Wales, s 164(1) of the Evidence Act provides that evidence need not be corroborated. The section does not, however, prohibit the giving of a direction in respect of corroboration: R v Lewis (unreported, New South Wales Court of Criminal Appeal, 8 September 1998).
Section 165 of the Evidence Act deals with “unreliable evidence”, specifying the type of evidence which may be unreliable, for example, identification evidence: s 165(1)(b); and evidence given in a criminal proceeding by a witness who is a prison informer: s 165(1)(e). The evidence of a complainant of a sexual assault does not fall into any of the nominated categories of unreliable evidence, although it is important to keep in mind that s 165(1) does not constitute a code of unreliable evidence. Section 165(2) provides that in a case before a jury, the judge is to give a direction if so requested, that the evidence may be unreliable. Subsections (3) to (6) qualify this requirement in certain respects.
Levine J, at J 64 dealt with the question of corroboration in a civil trial in the following terms:
“The trial judge in a civil action, as the fact finding tribunal, will give due weight to uncorroborated evidence but will bear in mind the fact that it is uncorroborated (which in the end may have no effect at all) in determining whether on the balance of probabilities the particular issue has been established. To ignore the absence of corroboration in a civil case where a grave allegation is made could give rise to a perceptible risk of the miscarriage of justice: R v Longman (1989) 168 CLR 79 at 86: not because it is a grave allegation of sexual misconduct, but because it is evidence standing alone without corroboration.”
Longman was a criminal case dealing with the question whether a warning should be given in respect of the uncorroborated evidence of the victim of sexual abuse. There were statutory provisions which governed the giving of warnings in such a case. The High Court held that notwithstanding that the statute in part prohibited the giving of a warning, a warning could still be given “where the particular circumstances of the case provide a justification”: per Brennan, Dawson and Toohey JJ at 88–89. See also Deane J at 94-95
In R v Crampton (2000) 206 CLR 161 the High Court, in applying Longman, considered that a warning of the danger of convicting on uncorroborated evidence was justified – and it would seem required – where there was a delay in a complaint of sexual assault.
The appellant submitted that his Honour erred in his approach to corroboration by importing into this case, which is a civil case, principles which are applicable to the criminal law by transposing the ‘warning’ requirement, for which Longman and Crampton are authority, to a requirement of corroboration in the case of a grave allegation in a civil case.
Had his Honour’s comments at J 64 stood alone, there might have been an argument that his Honour considered that the absence of corroboration in the case of a grave allegation affected the quality of the evidence given. That would not necessarily be correct. Evidence of itself may be inherently credible or incredible. The work of corroborative evidence is to support the evidence of a particular witness. A witness’s evidence may require support before it is accepted because of some feature of the evidence itself – for example, the evidence may be in respect of an event which occurred many years previously or the witness may have proved so unsatisfactory that the trial judge determined that the witness’s evidence would not be accepted unless supported by other evidence. J 64 appears on its face to go beyond that.
It is apparent, however, from his Honour’s later remarks that he did approach the question of corroborative evidence correctly, in the way to which we have just referred. His Honour acknowledged that the need for a cautious approach to the acceptance of uncorroborated evidence in the criminal sphere is not based upon the ‘kind’ of evidence but on the circumstances of the case: Lane v the Queen (1996) 66 FCR 144. He specifically rejected the respondent’s submission that there is a need for caution by reason of the class of evidence, that is, that there is a need for caution in relation to “uncorroborated evidence of a complainant in a sexual offence case” [J 68].
His Honour considered that it was appropriate in civil cases involving grave allegations to scrutinise the evidence with care: see Murray v R (1987) 11 NSWLR 12 at 19, noting the different standard of proof involved. He said:
“The difference is, of course, that the trial judge will scrutinise the evidence with care, but by reason of experience would understand that taking into account the need for careful scrutiny does not mean that the evidence is unreliable, but rather that the exercise is to determine whether it is reliable before concluding the part it plays in the weighing of the probabilities.” [J 70]

His Honour concluded “the complainant’s evidence will be considered with care to determine its reliability and weight, not merely because it is unsupported evidence in a sexual complaint case” [J 73]. This comment is explained in the paragraphs which follow in his judgment, namely that there could be two circumstances which were relevant to the need for careful scrutiny – “delay in complaint” and a consideration of the question “why would the complainant lie”.
His Honour noted that in R v Crampton the High Court held that evidence of a complaint could not be adequately tested after a long passage of time, and that it would be dangerous to convict someone on such a complaint without scrutiny by the jury. However, the trial judge accepted the appellant’s submission that Crampton could be distinguished as this was a civil trial with a different standard of proof and these specific allegations had been able to be “explored” throughout the hearing. He noted, however, that the “antiquity” of the allegations remained relevant to the consideration of the evidence. We see no error in this approach.
As to the second matter “why would the complainant lie”, his Honour concluded that, in “the absence of litigation of an issue as to whether in fact the witness has a reason to lie or in fact lied”, it would be imprudent to consider the question of whether the witness would lie. Again there is no error in his Honour’s observation.
It is apparent from his Honour’s discussion of the emphasis to be placed on the presence or absence of corroborative evidence that he did not err in applying a criminal standard, rather he adopted a cautious approach in line with the gravity of the allegations.
Application of “an inappropriately high” standard of proof/gravity of the allegations
The appellant submitted that his Honour also erred in the standard of proof he applied to his fact finding exercise by placing undue emphasis on the “gravity” of the conduct alleged.
In the introductory remarks to his judgment the trial judge characterised the found imputations as serious allegations. He said [J 24]:
“This is a civil case. The [appellant] has pleaded the defence of ‘justification’ and the burden of proof rests on [the appellant]. As this is a civil case, the standard of proof is the ‘balance of probabilities’. That which the [appellant] has to prove in its defence of justification is the substantial proof of ‘grave allegations’. There is no escaping the allocation to those allegations (as captured by the found imputations) of the description ‘criminal’ conduct. However, any such description cannot derogate from the application of the civil standard of proof.”
His Honour referred to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1993) 67 ALJR 170 at 170-1 (the Briginshaw test).
The appellant challenged this characterisation, submitting that given the respondent’s admitted lifestyle of casual and promiscuous sex the allegations were not grave or serious. We do not agree. The imputations involved allegations of criminal conduct of a type abhorred in our community. The allegations were of ‘knowing’ engagement in a criminal act with a 15 year old having administered drugs to the boy upon whom the criminal act was perpetrated and of engaging in criminal acts under, in effect, a screen of deliberately refraining from enquiring about the ages of the persons upon whom the criminal acts were perpetrated. The allegations were, unarguably, very serious. His Honour was correct in so characterising them and he was correct, therefore, to have regard to the Briginshaw test in his assessment of the evidence.
The principles in Briginshaw and Neat Holdings are well known but, given the importance of this submission to the appellant’s overall challenge to his Honour’s determination, they bear repeating.
In Briginshaw Dixon J said at 361-362:
“… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”
This was explained further in Neat Holdings where the Court stated at 170-171:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authorative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” (citations removed)
Section 140 of the Evidence Act now statutorily enshrines the standard of proof on the balance of probabilities in a civil case. It further provides:
“(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
…
(c) the gravity of the matters alleged.”
It is well accepted that the test to be applied under s 140(2)(c) is the Briginshaw test: see Pedler v Richardson (unreported, NSWSC, Young J, 16 October 1997); Wily v Fitz-Gibbon (unreported, FCA, Hill J, 2 March 1998); WK v SR (1997) 22 Fam LR 592 (Full Court of the Family Court).
Seeking guidance from the criminal law when dealing with the issue of knowledge
The appellant’s general submission that the trial judge erroneously sought guidance from the criminal law when dealing with the issue of knowledge was made in respect of Leary, Stevens, Lilburn, Stals, David Maynard, John Maynard and Kinchela:
“Nine of the … ten justification witnesses met the Respondent at beats where underage male prostitutes met customers. Most of the justification witnesses were of boyish appearance at the relevant time… [see, for example, Leary, Stevens, Lilburn, Stals]. Some told the Respondent their age… [David Maynard, John Maynard, Kinchela, Stevens].”
There is no appeal in respect of Leary, Stals, David Maynard, John Maynard and Kinchela. As the particular challenge to his Honour’s approach relating to knowledge is essentially confined to D18 it is more convenient to consider that challenge in the section dealing with D18.
Modus Operandi; Tendency Evidence
The appellant, as a feature of the manner in which it sought to prove its case, “constructed” a modus operandi of the respondent’s conduct. The trial judge rejected that approach. He said when setting out his reasons in respect of the witness Kinchela [J 1864]:
“The [appellant] sought to construct a ‘modus operandi’ against which the accounts of each of its complainants called to prove the truth case would be, as-it-were, judged. The problem with that approach of course is that the modus operandi itself depended to a very great extent upon acceptance of the evidence of the complainants.”
The appellant complains that this finding was wrong because the modus operandi upon which it relied was based upon the respondent’s own evidence [AS 36]. However, this submission fails to take into account his Honour’s further observation at J 1866 [AS 39]:
“As I have said above the modus operandi concept was based upon, as it had to be, either or of both matters admitted by [the respondent] and matters alleged by the complainants. If the complainants are not believed, then a great proportion of the so-called modus operandi disappears as does the basis for the assertion, that the probabilities favour the [appellant] because the asserted conduct conforms with the modus operandi.”
To the extent that the appellant’s submission overlooks this passage we reject it. It is our view, however, that the modus operandi argument had the potential of misdirecting the parties and ultimately the court’s attention from the real issue, which was whether a particular witness’ evidence could, on the whole of the evidence, be believed. To that extent, elements of the “modus operandi construct” were relevant as evidence potentially corroborative of the evidence of individual witnesses. We deal with that question as we consider the evidence overall.
There are two other matters with which it is convenient to deal first. One is whether his Honour erroneously approached the assessment of the evidence of various witnesses by rejecting it if it did not fit the modus operandi. It is necessary to go to individual examples to determine whether this submission is made out.
In the case of the witness Stevens, for example, his Honour concluded at J 1381:
“The event described by Mr Stevens is extraordinarily different from the events described by any other complainant. Insofar as there exists any template or modus operandi in the [respondent] save for what I describe as the ‘pick up’ everything otherwise falls outside of any standard procedure.”
We see no error in his Honour’s remarks.
His Honour’s remarks in respect of Kinchela are more problematic. We have already quoted J 1866 above.
This passage seems to indicate that his Honour’s approach to determining whether the imputations were made out depended upon him being satisfied that the modus operandi was established through each witness. To the extent that his Honour found that “an element” of the modus operandi was missing or different from that alleged, it appears his Honour used that as a factor when assessing, always adversely, the credit of the appellant’s witnesses. This carries with it a danger that a witness’ evidence might be tested against a pre-determined set of facts or formula, rather than determining whether a witness’ evidence assessed in conjunction with any or all the evidence, including any corroborative evidence, should be accepted.
For example, in the case of D20, his Honour stated in his Conclusions [J 2869]:
“D20 said he was picked upon in a Mercedes; [the respondent] had a Mercedes. It was chauffeur driven; [the respondent] had a driver. The driver gave evidence that it was not his habit or usual function to drive [the respondent] to ‘beats’ and did not do so. [The respondent] gave evidence that he did not pick up casual sexual partners at El Alamein Fountain. The [appellant’s] submission that this falls into the modus operandi of the [respondent] of course depends upon that modus operandi having otherwise been established. It is not as I have found in relation to other witness who have said that that was the place where they were picked up.”
At J 2875, he said:
“As to the sexual activity itself it was as between a practising homosexual and a casual sexual partner unremarkable except that D20 said that he was ‘the top’ albeit unsuccessfully as I understand it. The casual sexual partner being ‘the top’ does not fit in with any template or ‘modus operandi’ advanced for the [appellant].”
This conclusion, we believe, demonstrates the danger to which we have just adverted – namely, unless a witness’ evidence fitted the modus operandi precisely, his Honour considered that the account of the witness was thereby diminished. However, it should not be overlooked that it was the appellant that urged upon his Honour that conformance of the witness’ account with the appellant’s version of modus operandi supported acceptance of that evidence. His Honour was entitled to consider the extent to which there was disconformance in determining whether or not to accept the witness’ account.
Another example can be found in his Honour’s treatment of the evidence of David Maynard. He said at J 248:
“I find it to be bizarre and in no way conformable with any ‘modus operandi’ or sexual practice on the part of the [respondent].”
We include this passage by way of illustration only. The appellant did not rely upon the evidence of either John or David Maynard on the appeal. We add that there was no appeal in relation to Kinchela.
We deal more fully with both these issues as and when they arise in relation to the individual witnesses. It is necessary at this point to deal with the various justification witnesses.
Admissions by Conduct
This was an area upon which the appellant relied in support of its justification case. No complaint is made that his Honour misstated the principles which govern an ‘Admissions by Conduct’ case. However, as it is an area relevant to several of the witnesses it is convenient at this point in our reasons to consider the general principles which apply.
His Honour’s preliminary analysis of the case the appellant sought to make under this heading is found at J 44-46, and J 48:
“44      The defendant submits that the evidence establishes attempting to suborn witnesses or potential witnesses and thus constitutes an admission of the relevant allegations. The evidence establishes, the defendant submits, the plaintiff inducing, or attempting to induce, especially in a secret manner, witnesses to commit a wrongful act such as giving false evidence: that constitutes the suborning of the witnesses.
45       I shall come in due course to the evidence of the alleged suborning. It is the defendant’s position, however, that I should find that the plaintiff attempted to suborn eight witnesses for the purposes of preventing each of them being called to give evidence by the defendant, and to interfere with and inhibit the preparation of the defendant’s case on justification in order to prevent the Court from “discovering the truth” of the issues raised in that case advanced by the defendant.
46       Further, the defendant contends that the conduct of the plaintiff in relation to two documents, the making of a statutory declaration by a witness and the procuring of a letter from his (the witness) solicitors to the defendant’s solicitors was done for the purpose of preventing that witness being called and of interfering with the defendant’s case.
…
48       The submission is that upon the appropriate findings being made on the evidence, the only explanation of the plaintiff’s conduct is that the plaintiff acknowledged the truth of the matters raised in the defendant’s case on justification, in respect of which testimony would be led from the eight witnesses referred to, and that the plaintiff did not believe that his case had sufficient strength for the Court to accept his version of the events in answer to the testimony of those witnesses.”
His Honour considered that the allegations involving the Admissions by Conduct were “grave” and that “gravity”, “as required by s 140 of the Evidence Act 1995, will be taken into account”.
As no error is alleged in his Honour’s statement of the law which underlies the circumstances in which conduct may amount to an admission, it is sufficient to refer to the statement of Phillimore J in R v Watt at 853:
“… the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieved in his own case, may be proved and used as evidence against him.
The principle is well stated by Sir Alfred Wills, until lately Wills J, in his edition of his father’s work upon circumstantial evidence, ‘[a]mongst the most forcible of presumptive indications may be more than all attempts to pollute or distort the current of truth and justice or to prevent a fair and impartial trial, by endeavours to intimidate, suborn, bribe, or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, the concealment, suppression, destruction, or alteration of any article of real evidence; any of which acts clearly brought home to the prisoner or his agents, are of a more prejudicial effect as denoting on his part a consciousness of guilt, and a desire to evade the pressure of facts tending to establish it’.” (emphasis added)
Lies may also amount to an admission by conduct. The question as to when this is the case more frequently arises in a criminal case than in a civil case and in that context is often considered under the label of ‘corroborative evidence’ – that is as evidence which can be used by the Crown in aid of proof of guilt.
The authorities caution that particular care has to be taken when directing a jury as to the circumstances in which a lie may amount to corroboration. In Buck v R (1982) 8 A Crim R 208, Burt CJ said at 214:
“A jury, in my opinion, requires a very careful direction upon the circumstances in which a lie told by an accused person in or out of court can amount to corroboration. It has been said that to be capable of amounting to corroboration the lie must be deliberate, it must relate to a material issue, the motive for the lie must be a realisation of guilt and a fear of truth and the lie must be established as such by evidence independent of the witness to be corroborated or by admission made by the accused.”
This statement was approved in R v Sutton (1986) 5 NSWLR 697 at 701. In that case, after referring to Buck, Street CJ said:
“… reliance by the Crown on collateral conduct eloquent of guilt, such as flight or a lie, is fraught with the risk of miscarriage. The link between such conduct and the crime in question must be demonstrable.”
It is important, however, to remember that there is a distinction between lies which may constitute an admission of guilt and lies which merely go to credit: see R v Lucas [1981] QB 720 at 724; R v Liddy (2002) 81 SASR 22 at 90 (para 241). In Lucas the Court noted that people:
“… sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of wish to conceal disgraceful behaviour from their family.”
The principle it would seem is equally applicable to lies told in Court: see Lucas at 724; “Can Lies Corroborate”, Professor J D Heydon (as he then was) (1973) 89 LQR 552 at 561.
The authorities to which we have just referred are criminal ones. In R v Liddy, Mullighan J said at para 242-243:
“It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused’s credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn.”
The concept that “no other rational inference may be drawn” is a concept of the criminal law, necessitated by the standard of proof beyond reasonable doubt. In a civil case, it is sufficient in our view for a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn. In this regard we adopt the like approach taken by the trial judge to the adoption of the knowledge test in Pereirav Director of Public Prosecutions (1988) 63 ALJR 1 (to which we come later in these reasons) to the civil sphere. That adoption is not only appropriate but necessary to accommodate the differing standard of proof.
Appellate Review

As we understand it, the parties accepted the view of damages for defamation expounded by McHugh JA. We were not asked to depart from the majority judgments in that case.
McHugh JA went on to consider how the interest should be calculated. His Honour said (at 143) -
“In a practical as well as a theoretical sense, the plaintiff in a defamation action is entitled on publication to damages. In particular, he is entitled to damages to vindicate him. A plaintiff in such an action sustains loss for each day that the defendant fails to pay the appropriate damages to him. However, it does not follow that the plaintiff is entitled to interest on the whole award. In many cases the award will reflect an amount for continuing injury to feelings and reputation to the date of verdict. Hence the amount awarded may, and usually will, be higher than the amount which would have been awarded as at the date of publication or even as at the date of the writ. Paradoxically, the amount awarded as vindication per se will inevitably reduce as the damages increase for continuing injury. This is because the award of damages for actual injury will also partly serve the purpose of vindicating the plaintiff's reputation. However, there is no strict correlation between the damages for vindication and the damages for injury to feelings and reputation. If damages were awarded at the date of the writ in a particular case, the proper damages might be $3x. By the time of trial the actual injury might be equivalent to $2x. Yet a proper award for all elements might be only $4x. In some cases damages for vindication will constitute the greater part of the verdict; in other cases those damages per se will play a lesser role. However, to the extent that the damages reflect a component for actual injury to the date of trial, the plaintiff's loss is spread over a period. Any award of interest must reflect that fact.
The correct approach in theory would seem to be that, since the plaintiff was entitled to damages immediately upon publication, the proper inquiry is first to determine to what extent the award was increased by reason of continuing injury. In strict theory the interest, in respect of this additional sum, would need to take account of the fact that the injury was spread over a period after publication. That is, leaving aside any question of future loss, the matter should be approached on the basis that the plaintiff is prima facie entitled to interest on the whole amount of the award from the date of publication. However, that amount has to be reduced for any sum additional to "vindication damages" awarded in consequence of injury suffered between publication and verdict. This approach gives rise to obvious difficulties of assessment. But if, as I think is the case, the plaintiff is entitled to at least part of his damages from the date of publication, the choice is between awarding no interest at all or attempting to calculate interest on a basis which, although not mathematically perfect, achieves a measure of justice. Since it is unfair to plaintiffs to deprive them of interest for the period in which they have been deprived of their money, interest ought to be awarded to the extent that it is fair and proper.
Unless a claim is made for special damages or for the future, I think that it is best not to leave any questions to the jury in relation to the interest issue. Speaking generally, the best approach is to treat the award as though the damages represent a loss spread over the period from the date of publication to trial. It is a process which does not achieve perfect justice for the plaintiff since he may have ceased to suffer actual injury well before the trial. But it seems to me to be the most practical approach to a difficult problem.”
The agreement of Kirby P extended to this also. Because Samuels JA took a different view of the nature of damages as vindication, his Honour did not address this matter.
McHugh JA recognised that damages in vindication of reputation will carry full interest from the date of publication. Damages in compensation for injury to feelings and reputation will not all carry interest from the date of publication, because the injury includes injury over the period to the trial. Because the two kinds of damages overlap and interrelate, his Honour said, as a practical approach all damages should be treated as representing a loss spread over the period from the date of publication to trial.
So treating the damages means either interest at the 4 per cent MBP(SA) Pty Ltd v Gogic rate for half the period from the date of publication to trial or interest at half the 4 per cent rate for the whole of the period from the date of publication to trial.
We can now go to the reasons of Levine J. They were brief. After referring to John Fairfax & Sons Ltd v Kelly, his Honour said -
“2   In paragraph 5266 of my reasons for judgment, I set out the factors, in summary form, that led to the computation of the awards actually made. I did not, as there was no requirement upon me, (as there would have been no requirement upon a jury), differentiate in quantification terms between the various components of the award to which I refer in that paragraph.
3   Entitlement to vindication as of the date of publication, of course, is quite clear and it is clear from what I have said in the written reasons and what I said orally this morning that that was a substantial component of the award.
4   I am of the view that the proper approach in a case such as this, the amount and quantum being entirely a matter for me, that it accords with principle as to the continuum over which the initial loss has been sustained, (as well as with avoiding the artificiality of trying, for the purposes of interest, to allocate sums of money to particular components), in that followed by Simpson J in Vilo v John Fairfax & Sons Limited [2000] NSWSC 1206; that two percent represents a fair and just outcome as the appropriate rate to be applied.”
In Vilo v John Fairfax & Sons Ltd (2000) NSWSC 1206 Simpson J had said (at [25]) -
“In this case, as in others, I think it should be taken that the damage to the plaintiff’s reputation, and the injury he suffered, was spread (perhaps not evenly) over the period of seventeen years. But it must be taken to cease on the award of damages. Although it may be reasonable to conclude that the greater damage was occasioned in the earlier part of the period, thus tilting the balance slightly in favour of the plaintiff for a larger interest rate, I think to do justice to both parties it is more appropriate to treat the injury as spread evenly over the period. This would justify a halving of the interest rate declared by the High Court. I propose to award interest on the whole of the damages over the whole of the period, at a rate of 2 per cent.”
In other cases the spread of loss over the relevant period has been reflected by halving the interest rate (see for example Hartley v Nationwide News Pty Ltd (Allen J, 4 May 1995, unreported); Thompson v Australian Capital Television Pty Ltd (1998) 133 ACTR 1, effectively following the practical approach of McHugh JA). That has not always been done, (see for example Norris v Illawarra Newspaper Holdings Pty Ltd (Badgery-Parker J, 15 December 1995, unreported) and Erskine v John Fairfax Group Pty Ltd (Levine J, 6 May 1998, unreported).
The respondent’s submission, and the issue, can now be better understood. In substance, it was that the practical approach of McHugh JA was not appropriate in the present case, and that the purpose of an award of interest in these cases called for interest at the rate of 4 per cent for the whole of the period from the date of publication to trial. The respondent submitted that, apart from a modest allowance for injury to feelings, the damages were for injury to and vindication of reputation. This, he said, was an amount to which he was entitled as at the dates he was wronged, because it was then that his reputation was injured and it was then that vindication was required. He accepted that the 4 per cent rate should be used rather than commercial rates, because the damages were assessed according to money values at the date of judgment. But he submitted that Levine J erred in treating the damages as representing a loss spread over the period from the broadcast of the programmes to judgment, and so using half the 4 per cent rate for that period.
Interest awarded in the exercise of the power in s 94 of the Supreme Court Act is discretionary. Levine J was not obliged to follow a formula. He considered that 2 per cent over the whole period “represents a fair and just outcome”. He did not, as the respondent’s submissions in effect asserted, blindly follow the approach of Simpson J without regard to the facts of the present case. It must be shown that his Honour erred within the principles described in House v The King.
His Honour recognised that vindication was a substantial component of the award, and that the entitlement was as at the date of publication. His Honour appears to have been moved by two considerations. One was that it accorded with principle “as to the continuum over which the initial loss has been sustained”. The other was the artificiality of trying to allocate sums of money to particular components; this must have meant allocating the damages between injury to feelings and reputation and vindication of reputation.
It is nonetheless arguable that on the assessment of damages made by Levine J there was error in his exercise of discretion as to interest. Whether there is a continuum over which loss has been sustained depends on the loss, and where the damages must have been significantly in vindication of reputation that was apt to distort any continuum. Injury to reputation could continue over the period from date of publication to trial, but on the facts in these cases the substantial injury to reputation was immediate. Appreciating that what is involved is the exercise of a discretion, we do not see that it was artificial for his Honour to pay regard to the fact, evident from his judgment, that the allowance for injury to feelings was modest and the requirement for vindication was high, so that vindication predominated as a purpose of the award of damages. Arguably, there was failure to address the particular circumstances of the cases.
However, we do not think it necessary to come to a concluded view. In the light of what we have earlier said, the compensatory damages must be reconsidered, and exemplary damages will also have to be considered. The mix of damages and amounts of damages material to Levine J’s exercise of discretion will no longer hold good when fresh consideration is given to interest. The discretion as to interest must be re-exercised in any event. It is sufficient that we draw attention to what may have been past error, but the new exercise of discretion will be for whoever exercises it.
COSTS
Levine J ordered the appellant to pay the respondent’s costs on a party and party basis up to 25 February 1997 and on an indemnity basis thereafter. After a very long trial, it needs no imagination to appreciate that the costs consequences between the parties will be significant. The appellant submitted that his Honour erred in making the orders for indemnity costs.
On 25 February 1997 the respondent made offers of compromise pursuant to Pt 22 of the Rules. The offers of compromise were in the same terms in each of the proceedings, and were -
“The plaintiff offers to compromise this action in terms that:
1.The Defendant pay to the Plaintiff the sum of $250,000 plus costs to be agreed or assessed.
2.The Defendant undertakes to pay the said sum within 28 days of acceptance of this offer and costs within 4 days of assessment of or agreement as to costs, as the case may be.
3.This offer shall remain open to be accepted until 26 March 1997.”
The appellant did not accept the offers of compromise.
Part 52A r 22(4) of the Rules provides -
“(4) Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall … be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to his costs incurred before and on that day, assessed on a party and party basis.”
The respondent obtained judgments no less favourable than the terms of the offers. As to the Today Tonight programme, together with interest on the damages the judgment was for $309,165.25. As to the Witness programme, together with interest on the damages the judgment was for $275,698.63.
The appellant submitted to Levine J first, that neither of the judgments was “on the claim to which the offer relates” so that Pt 52A r 22(4) had no application; and secondly, that if the rule did have application, the Court should otherwise order.
Levine J did not accept either submission, and applied Pt 52A r 22(4). After going through the pleadings, his Honour said -
”13   Since the time that the offer of compromise was made in each case, there have been two constants in this litigation. First, the defence of privilege and, second, the defence of truth, either pleaded contextually, substantively or both, depending upon the state of the pleadings.
14 As at trial, where the defence of truth was under both s 15 and s 16, the material relied upon by the defendant for both defences was the same. At trial, the dimensions of the second constant, namely truth in one form or another, exceeded that which would have been anticipated in 1997, principally by reason of the application to amend which was dealt with in [1999] NSWSC 619: DLJT 44, 23 June 1999.
15   The substance of the claim and its anticipated litigation never changed in terms of the real issues. The progress of the pleadings exemplified above indicates, in effect, each side "adopting' the other's meanings.
16   In the course of the judgment I delivered this morning, I have remarked, I believe in several places, on the formal legal construct that is the s 9 imputation. The making of the application and the submissions advanced in opposition to it, I acknowledge, raise important matters of principle in relation to pleading in defamation actions, to litigation of the real issues in defamation actions, to the policy behind and the risks associated with offers of compromise.
17   I have had regard in the time available to me to statements made in the Court of Appeal in Whitehouse Properties Pty Ltd v Bond Brewing (1992) 28 NSWLR 17 at 21 per Handley JA, particularly the observations of the Kirby P in Hillier v Sheather (1995) 36 NSWLR 414 at 422 and Nobrega v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [1999] NSWCA 133.
18   By reason of the conclusion to which I have come that the "claim" in substance, as opposed to questions of technical form, has remained in place since the time of the offer of compromise, I propose to allow the application, not being persuaded as to the second leg of the defendant's argument that there are grounds that I should order otherwise.”
The appellant submitted that his Honour was in error in giving Pt 52A r 22(4) application and in declining to otherwise order. The circumstances in which his Honour was asked to apply the rule and declined to order otherwise have been altered by our determinations in the appeal. Damages are to be reassessed, at least in part. Exemplary damages are in play. Depending on the nature and extent of a new trial, it is conceivable that the offers of compromise will not be exceeded by the judgments, and the discretion if arising will need to be re-exercised. Again, however, it may be of utility to any reconsideration of costs to go some way in dealing with the submissions.
a) The claims to which the offers related
The question of law can usefully be considered, in our view, without unduly intruding into any future disposition of costs.
The essence of the appellant’s submission was that -
(i)each imputation is a separate cause of action;
(ii)the respondent amended the pleaded imputations so that the imputations found by the jury to have been conveyed were not imputations pleaded as at 25 February 1997;
(iii)therefore the judgments were not on claims to which the offers related.
None of the imputations which went to the jury was in the precise terms of a pleaded imputation as at 25 February 1997.
Section 9(2) of the Defamation Act provides that where a person publishes any matter to a recipient and by means of the publication makes an imputation defamatory of the person “the person defamed has, in respect of that imputation, a cause of action against the publisher …”. Each imputation gives a separate cause of action (see Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR 174 at 190 and Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 676). It can be said with some force that the respondent’s causes of action in respect of the imputations found by the jury to have been conveyed were not causes of action maintained by him as at 25 February 1997.
However, it does not follow that the respondent’s judgments were not on the claims to which the offers of compromise related. The application of Pt 52A r 22(4) relevantly turns on the words “the claim to which the offer relates”. Those words reflect Pt 22 r 2 of the Rules, which speaks of an offer “to compromise any claim in the proceedings on the terms specified in the notice of offer”. If one goes to the offers of compromise, the respondent offered to compromise “this action”. Taking the broadcast of the Today Tonight programme, what was the claim or were the claims in “this action”?
In his statement of claim the respondent alleged the publication of matter, that is, the broadcast of the programme; that the matter gave rise to a number of imputations defamatory of him (which were set out); and that by reason of the publication of the matter the respondent had suffered injury and loss. It was then said that the respondent claimed damages, aggravated damages, interest and costs. Notwithstanding that in legal analysis this included a number of causes of action, as many as the pleaded imputations, in our view it is entirely sensible to say that the claim in the action was a claim to damages and other relief for the injury and loss suffered by reason of the broadcast of the programme, and that that was the claim to which the offer related.
The wrong to a plaintiff comes from facts, although the facts are pressed into a legal mould or legal moulds in order that a court require the wrong-doer to pay money or grants some other relief. So, for example, a client suing a solicitor for failing properly to carry out a conveyancing transaction claims compensation for the loss suffered, and it does not matter that the client may frame the claim as a cause of action for breach of contract or a cause of action for tortious breach of a duty of care. That is not to say that the client may not, in making an offer of compromise, distinguish between the two causes of action, and by the client’s own dictionary make the offer relate to a claim in the sense of one of the causes of action. Nor does it mean that in some situations, about which we do not speculate, the facts may not properly be regarded as giving rise to more than one claim. Our point is that the rather artificial construct of separate causes of action, because the Defamation Act makes the cause of action for the publication of matter a cause of action in respect of an imputation, does not have the consequence urged by the appellant. It is necessary to look at the offer of compromise and identify what is the claim to which it relates, and “claim” is not, or at least not necessarily, the same as “cause of action”.

In Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17 the offer of compromise was expressed to be in satisfaction of a claim for compensation for loss of possession of an hotel. It was contended that the offer was invalid because it did not deal with the claims in the proceedings for damages and mesne profits. Handley JA said (at 21) that there was nothing in the point -
“ … because an offer of compromise may be made in respect of ‘any claim in the proceedings’. The offer was expressed to be made in respect of the defendant’s claim for compensation. It was not made in respect of other claims, and these were left to be resolved by later agreement or judicial decision.”
The appellant submitted that this illustrates the importance of identifying the claim in respect of which the offer was made. That may be accepted, but it does not equate “claim” with “cause of action”. The offer distinguished between claims.
In Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 the plaintiff in an action for damages for defamation made an offer of compromise. The offer was not accepted. The plaintiff succeeded in the proceedings and was awarded damages in excess of the amount of the offer, but on appeal it was ordered that there be a new trial limited to damages. The damages awarded in the new trial were also in excess of the amount of the offer. The trial judge refused to order indemnity costs, amongst other reasons because he considered that on the true construction of the Rules the offer of compromise ceased to have effect after the conclusion of the first trial.
It was held on appeal (Gleeson CJ and Priestley JA, Kirby P dissenting) that the trial judge’s construction of the Rules was incorrect, because an offer is made not in respect of a trial but in respect of a claim, and a claim may not be finally heard and determined until after there have been a number of appeals and perhaps a number of trials. The reasons of the majority included (at 408) -
“First, the subject of an offer of compromise is a claim in proceedings (Pt 22, r 2). In the present case, the claim was for damages for defamation. In accordance with the rules, the appellant's offer to compromise was expressed as an offer to compromise that claim for a certain sum of money plus costs. The concept of the relevant compromise being the compromise of a claim is basic to the rules in question: see Pt 22, rr 2, 3. It is not a compromise of a hearing, or of one round in a bout of litigation. The appellant had only one claim, and it was that which he offered to compromise. The same claim was litigated at the second trial. That claim was only finally heard and determined at the conclusion of the second trial (and, still then, subject to the appeal process).”
The respondent submitted that this was authority against the appellant’s submission. It does not appear from the report whether the plaintiff pleaded more than one imputation. Although the claim was described as a claim “for damages for defamation”, without reference to an imputation or the imputations pleaded, it is plain that the present question was not raised. We do not think that Ettingshausen v Australian Consolidated Press Ltd can be regarded as authority on the point. It can, however, be seen as an illustration of ordinary use of language in describing the consequences of publication of defamatory matter as a claim for damages for defamation.
In his earlier decision of Antoniadis v TCN Channel 9 Pty Ltd (24 April 1997, unreported) Levine J had held that, where a plaintiff who sued in respect of three separate broadcasts offered to compromise “her claim”, the offer related to “her claim constituted by action against the defendant for the three programs”. Although not referring to it, in his decision in the present case his Honour took the same approach, considering that the claim “in substance as opposed to questions of technical form, has remained in place since the time of the offer of compromise”. In our opinion his Honour was not in error in giving Pt 52A r 22(4) application.
It does not follow that amendments to the pleaded imputations are to be ignored. Amendments to the pleaded imputations may be relevant to whether an order otherwise should be made.
b) Order otherwise
Unlike the question of law, this is not something we can usefully consider. As we have said, the discretion if arising will need to be re-exercised.
Levine J’s reasons for declining to order otherwise were economical. His Honour noted the appellant’s position that “the conduct of the litigation in the end was not unremarkable in the light of the issues and I would ‘otherwise order’ as the sub-rule provides”. His Honour did not attribute more to the appellant in this respect. In the concluding words in the passage earlier set out he said only that he was “not … persuaded as to the second leg of the defendant’s arguments that there are grounds that I should order otherwise”.
If the words “the conduct of the litigation in the end was not remarkable in the light of the issues” be taken at face value, that fact would not provide reason to otherwise order. It would only underline that the normal consequence of failing to accept the offer had not been displaced. If, therefore, the appellant’s position was no more than as noted by his Honour, he was right not to be persuaded that there were grounds that he should order otherwise. It was hardly necessary for his Honour to say more.
The appellant’s submissions in the appeal came down to these. First, it was submitted that Levine J had failed to give reasons for declining to order otherwise. Secondly, it was submitted that it should be inferred that Levine J thought that Pt 52A r 22(4) required him to make an indemnity costs order unless the appellant “demonstrated some exceptional circumstances which justified a different order”, and that he was in error because the discretion to otherwise order was not in terms confined to special circumstances or rare cases. Thirdly, it was submitted that Levine J erred in the exercise of his discretion in that “he failed to take into account Rule 11”, meaning Pt 52A r 11 stating the normal position that costs follow the event. Finally, it was submitted that Levine J did not pay sufficient regard to the particular circumstances, as to which the appellant said -
(a)the issues litigated at the trial were wider than those raised by the pleadings at the time of the offers, both parties having made significant amendments including the respondent’s claims as to malice, aggravated and exemplary damages, and damages for psychiatric illness;
(b)the proceedings were described by his Honour as “the longest and biggest defamation action in this country’s history”, with impressive back-up statistics;
(c)there was no finding that the appellant was guilty of unreasonable conduct in the conduct of its case;
(d)the appellant succeeded as to psychiatric illness, aggravated damages and exemplary damages; and
(e)orders on an indemnity basis had “a punitive effect … in all the circumstances of the case”.
Amidst these matters, it was asserted that the appellant had not acted imprudently or unreasonably in failing to accept the offers.
It is not clear to us that these or like submissions were made to Levine J. Perhaps they were within the expression, “the conduct of the litigation in the end was not unremarkable in the light of the issues”, although they are not what we would normally take from the expression. However, it can be seen that any utility in our dealing with the appellant’s submissions dissolves. In any reconsideration of an order otherwise the particular circumstances will have changed, a fresh approach will be taken, and fresh reasons will be given for whatever conclusion is reached.
ORDERS
The trial judge’s rejection of the defences of justification and qualified privilege (statutory and common law) stands. Subject to further submissions, there should be a reassessment in relation to compensatory damages, and we have assessed exemplary damages.
We make no substantive orders at the present time. The appeal and the cross-appeal will be listed for mention at 9.30am on 14 February 2003 in order to ascertain the parties positions as to a new trial as to compensatory damages and if necessary make arrangements for submissions. We direct that no later than 5pm on 7 February 2003 the parties exchange, with copies to us, statements of the orders and directions to be made including as to costs of the appeal and cross-appeal and in relation to any new trial.