Anthony Tony Rinaldi v Cobbittee Publications Pty Ltd & 2 Ors

[2006] NSWSC 1498

CITATION:	Anthony Tony Rinaldi v Cobbittee Publications Pty Ltd & 2 Ors [2006] NSWSC 1498
HEARING DATE(S):	25.05.06
JUDGMENT DATE :	22 June 2006
JUDGMENT OF:	Nicholas J
DECISION:	Para 56
CATCHWORDS:	Torts – Joint tortfeasors – Defamatory publication - Cross-claim by magazine publisher against informants for contribution or indemnity as suppliers of false information – Whether publisher’s conduct reasonable in circumstances – Apportionment of responsibility – Law Reform (Miscellaneous Provisions) Act 1946, s 5
LEGISLATION CITED:	Defamation Act 1974 s 7A, s 22(1) Defamation Act 2005 s 30(1), (3) Law Reform (Miscellaneous Provisions) Act 1946 s 5(1)(c)
CASES CITED:	Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 James Hardie & Coy Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
PARTIES:	Anthony Tony Rinaldi - plaintiff Cobbittee Publications Pty Ltd - first defendant/cross claimant on both cross claims Sandy McPhie - second defendant Amanda Ireland - third defendant Eva Rinaldi - defendant on first cross claim Maria Cantaldi - defendant on second cross claim
FILE NUMBER(S):	SC 20128/04
COUNSEL:	no appearance - plaintiff J S Wheelhouse SC - first defendant/cross claimant on both cross claims no appearance - second defendant no appearance - third defendant no appearance - defendant on first cross claim no appearance - defendant on second cross claim
SOLICITORS:	McGrath Dicembre & Co - plaintiff Banki Haddock Fiora - first defendant/cross claimant on both cross claims Corrs Chambers Westgarth - second defendant no appearance - third defendant no appearance - defendant on first cross claim no appearance - defendant on second cross claim

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

22 June 2006

2 Ors

JUDGMENT

1 His Honour: The cross-claimant Cobbittee Publications Pty Ltd (Cobbittee) has claimed separately against Eva Rinaldi (Rinaldi) and Maria Cantali (Cantali) as cross-defendants for contribution or indemnity under s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 (the Act) in respect of damages and costs payable by it to the plaintiff arising out of the publication of defamatory imputations by words and photographs in the magazine “That’s Life!” of 29 October 2003 on the front cover and in an article under the heading “Prince Charming” (the matter). Cobbittee also claims damages against Rinaldi for breach of an agreement made on 29 September 2003 for the supply of information and photographs for publication. Cobbittee was the proprietor and publisher of the magazine.

2 On 18 November 2004 at the trial under s 7A Defamation Act 1974 the jury found that the matter conveyed the following imputations of the plaintiff:

“(i) That the Plaintiff betrayed his wife by sleeping with her best friend Michelle;
(ii) That the Plaintiff was a bad husband in that instead of being at his wife’s hospital bedside for the birth of their child he was having sex with another woman;
(iii) That the Plaintiff was deceitful to his wife in that he promised her that he would not be unfaithful to her and only a few months thereafter he picked up a trashy woman in a brothel;”

3 On 1 March 2005 the cross-claims were filed. Difficulties in service resulted in the orders for substituted service made on 27 October 2005.

4 On 14 November 2005 judgment in default was entered for Cobbittee against Rinaldi and Cantali for damages to be assessed and for costs.

5 On 13 April 2006 Hall, J made consent orders in accordance with the settlement of the plaintiff’s claim against the defendants. It was ordered that as against Cobbittee there be a verdict and judgment for the plaintiff in the sum of $165,000.00 inclusive of interest and costs. The proceedings against the second and third defendants were dismissed. His Honour stood over the outstanding cross-claims for hearing to 22 May 2006 and directed Cobbittee to serve Rinaldi and Cantali with affidavits to be relied upon by 8 May 2006. The documents were served as directed. There was no response.

6 On 22 May 2006 the proceedings were not reached and were listed to commence at 9.30am 25 May 2006. By letters of 22 May 2006 Cobbittee’s solicitors advised Rinaldi and Cantali of the new time and date. There was no response. At the commencement of the hearing of the cross-claim by me at 9.30am 25 May 2006 Rinaldi and Cantali were called but did not appear. The hearing proceeded in their absence.

The circumstances of the publication

7 The matter complained of by the plaintiff comprised the words “He bonked my best mate while I gave birth” (pp 12-13) with a photograph of him on the front cover of the magazine, and the words and photographs in the article under the heading “Prince Charming”.

8 The flavour of the article is caught in its opening words:

“Tony was the only man Eva Rinaldi had ever wanted. But a wild car chase proved once and for all that the fairytale was over …”.

9 Its content is encapsulated in the imputations found by the jury. It describes Rinaldi as the adoring wife of the plaintiff, and the circumstances in which he betrayed her by sleeping with her best friend, Michelle. It tells of the plaintiff’s failure to be present in hospital at the birth of their son, and of the shocking discovery by Cantali, Rinaldi’s sister, of the plaintiff in bed with Michelle on this very occasion. It tells of Rinaldi’s reconciliation with the plaintiff, and of her discovery of his further deceit when she followed him to a brothel and watched him pick up a trashy woman. It describes her devastation, the shattering of the fairytale, and life without the plaintiff.

10 Included in the article were some photographs. One was of the plaintiff, Rinaldi, and another woman, with the caption “Michelle was bridesmaid at our wedding”. Another was of the same people on a different occasion, with the caption: “Michelle (right) had always been there for Tony and me”. Another was one of the son with another woman, with the caption: “Joseph with my sister Maria”.

11 Within the article, in a box, appeared the words: “True story as told to Amanda Ireland”. Towards the end of the article, in a label-like device, appeared the words: “True Story. Tell us your story and earn $500.00. See story coupon for details”. The coupon, which appeared elsewhere in the magazine, was an invitation to readers to send in their stories for publication for which payment was offered.

12 The magazine had a total sale of 416,783 copies, and a total distribution of 536,783 copies throughout the states of Australia, of which 110,649 copies were sold, and 139,688 copies were distributed, in New South Wales.

13 In support of its cross-claims Cobbittee relied upon the affidavit evidence of Amanda Jane Ireland of 16 May 2006, Maurice Felizzi of 5 May 2006, Yadranka Bolanca of 5 May 2006 and Bruce Norman Burke of 3 May, 18 May, and 25 May 2006.

14 Ms Ireland’s evidence was that she was a journalist employed by Cobbittee, and the author of the article. She said that during September 2003 she had been referred to Rinaldi who had phoned the magazine’s hotline and suggested a story. She spoke by telephone to Rinaldi on a number of occasions to obtain information, and to check that already supplied. The conversations were to the effect:

“I need to be certain that this is all true before it is published and that we have not made any mistakes. Are you satisfied that the story is exactly as you told me and that it is all true?” Eva Rinaldi said to me words to the effect of: “Yes, it is true””.

15 Ms Ireland spoke to Cantali to check details of the story because she was Rinaldi’s sister and the person said to have found the plaintiff in bed with Michelle. In particular she asked Cantali to confirm that it actually happened as Rinaldi described, and that she found the plaintiff in bed with Michelle while Rinaldi was in hospital having her child. Cantali gave the confirmation sought.

16 Ms Ireland said she checked the details of the brothel given to her by Rinaldi by having a features writer visit the premises and confirm the description. She said that having obtained Cantali’s confirmation, and verification of the brothel’s existence, she contacted Rinaldi, read the story to her, and asked for an assurance that it was true. Rinaldi replied: “Yes I am happy with it. It is all true”.

17 Ms Ireland stated that she would not have published the story had she not believed it to be true.

18 Mr Felizzi is the chief financial officer of the organisation which includes Cobbittee. He says that Rinaldi provided the information for publication under the written agreement signed by her on 29 September 2003 in the following terms:

“I, Eva Rinaldi, agree to tell my story exclusively to That’s Life!
I agree not to talk to any other national radio stations, national TV programs or other national magazines until after the story has appeared in That’s Life! on the news stands.
I agree to pose for or provide any pictures (if required).
The information that I give That’s Life! will be true and given in good faith. I understand that I will be paid after publication of my exclusive story. I understand that my payment will not be issued until I return a signed GST Statement which declares I am not a professional journalist and the information given to That’s Life! was submitted as a hobby only.
I also agree that my story may be used in any forthcoming television programme produced by That’s Life!”.

19 In his affidavit he stated, without elaboration: “… Verification of the factual assertions in the article were (sic) obtained prior to publication from … Cantali” (para 3), and that “… The magazine would never have published such an article if it had been aware that it was not true” (para 5).

20 Annexed to his affidavit was the letter of 27 January 2004 from the plaintiff’s solicitors which complained of false and defamatory statements in the article. The letter referred to the failure to contact the plaintiff prior to publication to check the veracity of the article. It pointed out that the person “Michelle” was fictitious, that the plaintiff was at the hospital when his son was born, and that the woman in the photographs described as “Michelle” was her sister.

21 He referred to the video recording of the plaintiff’s marriage to Rinaldi which had been provided to Cobbittee’s solicitors on 20 December 2004. It demonstrated that the woman shown in the photographs provided by Rinaldi, and said to be her best friend “Michelle”, was in fact her sister, Silvana. Immediately thereafter steps were taken to resolve the plaintiff’s claims and to institute the cross-claims. Eventually, on 14 February 2006, there was a mediation during which the claim was settled. The relevant orders were made on 13 April 2006. The amount of $165,000.00 has been paid, and a letter of apology provided, to the plaintiff’s solicitors.

22 Ms Yadranka Bolanca was the features editor of the magazine during 2004. After receiving the plaintiff’s solicitors’ letter of 27 January 2004 she had a telephone conversation with Rinaldi on about 3 February 2004. She specifically questioned Rinaldi about the facts stated in the article, and the allegations made in the letter. Rinaldi confirmed the truth and accuracy of the matters published, said that the plaintiff’s claims were ridiculous, and attributed his reaction to their current divorce proceedings. Ms Bolanca had no cause for doubt, and found Rinaldi to be very sincere and convincing.

23 On 26 October 2004 Ms Bolanca had a telephone conversation with Cantali in which she sought confirmation of the truth of the story because she was the one who caught out the plaintiff with Michelle. Cantali indicated confirmation, but said that she did not want to be involved in the dispute any further.

24 Mr Burke is the solicitor for the defendants. In telephone conversations prior to a conference with her Rinaldi told him everything she said was true. At a conference on 4 June 2004 she provided him with detailed information, and repeatedly asserted its truth. He spoke to Cantali by telephone on 30 June 2004, and she asserted that what Rinaldi said was true. Thereafter Mr Burke’s attempts to make further contact with either Rinaldi or Cantali were unsuccessful, and he received no responses to the letters he sent them.

25 After viewing the video of the wedding Mr Burke concluded that the publication was indefensible, and advised accordingly. He said that the defendants have incurred legal costs and expenses, inclusive of counsel’s fees and GST, in the amount of $91,225.00 to 11 May 2006, and estimated that additional legal costs for the final hearing will be about $10,000.00.

26 On advice, Cobbittee accepted that the information provided by Rinaldi and Cantali was false. It also acted on the advice of senior counsel that it was reasonable to consent to judgment against it for the sum of $165,000.00 inclusive of interest and costs.

The claim for indemnity or contribution

27 Relevantly, the Act provides:

“5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):

…
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity”.

28 The courts have repeatedly said that the discretion under s 5 of the Act is a very wide one. In Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25, p 29, Hayne, J said:

“No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the “relative importance of the acts of the parties in causing the damage” and it is “the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination”.”

He pointed out (p 31) that the introduction of apportionment legislation freed the courts from what had been seen as the desirability, if not necessity, of finding a single or effective cause of the injury of which complaint was made.

29 In this case, by default, Rinaldi and Cantali have been held to be liable with Cobbittee as joint tortfeasors who have defamed the plaintiff, and who are liable for the damage caused by the publication. The vital question is what amount Cobbittee is entitled to recover from each of Rinaldi and Cantali which is just and equitable having regard to their respective responsibility as a tortfeasor for the plaintiff’s damage from the publication. Consistent with the approach in Wynbergen, when considering what is just and equitable for the purpose of apportioning damages where the plaintiff’s reputation has suffered in consequence of a defamatory publication it will be necessary to examine the extent to which the acts of each joint tortfeasor has caused the damage suffered by the plaintiff. When doing so the court is to have regard to the relevant importance of the acts of the parties which will involve comparative examination of the whole conduct of each in relation to the circumstances of the publication.

Cobbittee’s submissions

30 Cobbittee sought full indemnity, alternatively contribution, in respect of the amount it has paid to the plaintiff. It submitted that this amount should be apportioned between Rinaldi and Cantali in the ratio of 60:40 on the basis that Rinaldi was the source and supplier of the information and the initiator of an untrue story, and Cantali purported to corroborate and confirm its truth. Reliance was placed on the evidence of the assurances given by them to Ms Ireland, and on Rinaldi’s statement in the agreement of 29 September 2003 that the information given would be true and in good faith.

31 Ms Ireland was the only person involved in preparing the article for publication. Cobbittee put that her efforts to check the accuracy of the story were reasonable in the circumstances. These involved obtaining the assurances from Rinaldi and checking the copy with her; obtaining Cantali’s confirmation of the accuracy of the account of the encounter with the plaintiff whilst Rinaldi was in hospital giving birth to the son; checking the location and description of the brothel; and obtaining the written warranty from Rinaldi. It was put that in the circumstances it was reasonable for Ms Ireland to accept their assurances without further enquiry. In support, the evidence of the conversations which Ms Bolanca and Mr Burke had with them after the plaintiff’s complaint was relied upon to demonstrate how persuasive they were.

32 It was submitted that the evidence of Ms Ireland and Mr Felizzi established that but for the written warranty of Rinaldi, and the confirmation of Cantali, the matter would not have been published.

33 Cobbittee submitted that the journalist should not be criticised for accepting Rinaldi and Cantali as people of truth, and that upon consideration of the whole of their conduct they should be found wholly responsible for the publication of the defamatory matter.

34 In the alternative it was put that when considering the respective responsibility of each party for the purpose of apportionment the cross-defendants should be found to be the initiators, suppliers, and verifiers of information which they knew to be false for the purpose of publication, and Cobbittee to be merely the vehicle for the publication of the story based upon that information which it was led to believe was true. It was put that, following the plaintiff’s complaint, Mr Burke had acted reasonably in seeking to investigate the allegations with the cross-defendants, as well as in settling the plaintiff’s claim for a reasonable sum after seeing the video of the wedding.

35 It was accepted by Cobbittee (T p 13) that in assessing the extent of its responsibility for publication it is appropriate to consider the reasonableness of its conduct with regard to the principles applicable to the similar issue under a defence of qualified privilege under s 22(1) Defamation Act 1974 or s 30(1), (3) Defamation Act 2005. An ingredient of this defence is that the conduct of the publisher in publishing the defamatory matter is reasonable in the circumstances. Section 30(3) Defamation Act 2005 provides that the factors a court may take into account for the purpose of determining whether the publisher’s conduct in publishing matter about a person was reasonable in the circumstances are:

“30(3)
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, an
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant”.

36 Relevantly, factors (c), (d), (g), (h), and (i) were discussed in Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374, pp 387-389 by Hunt, AJA where (p 388) he said that the defendant must also establish:

“… that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper enquiries and checking on the accuracy of his sources”.

He pointed out that:

“The extent to which the inquiries referred … should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one”.

37 In Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 it was held that where a journalist wishes to make a damaging attack on a person it is in the interests of society that he or she should be expected to take all reasonable steps to ensure that he or she got the facts right (p 363). Their Lordships said (p 364):

“There will of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack upon him in a daily newspaper”.

Consideration

38 Before turning to consider the question of apportionment reference should be made to the publication which damaged the plaintiff. The magazine had a large circulation. The plaintiff was prominently identified on the cover and in the article. It is self evident that each defamatory imputation found to have been conveyed was a serious allegation against the plaintiff which was likely to cause widespread harm to his reputation and considerable personal hurt and distress. The combined impact of the imputations would be very damaging indeed, reinforced by Cobbittee’s representation in the article that the story was true.

39 The defendants properly accepted that the plaintiff’s complaints were genuine, and there was no defence to his claim. Had it gone to trial they ran the risk of a substantial award of damages against them. In my opinion, therefore, the amount for which the claim was settled was, in all the circumstances, a very reasonable one.

40 With regard to Rinaldi’s responsibility, I find that she supplied the information upon which the defamatory matter was written in response to Cobbittee’s invitation to readers to send in stories for publication. From the evidence that the video of her wedding demonstrated the falsity of her assurance to Ms Ireland that the photographs she provided included ones of herself with the plaintiff and her best friend “Michelle”, I infer that she well knew that the information concerning the plaintiff’s conduct was false.

41 I am satisfied that Rinaldi deceived Ms Ireland as to the truth of the information when she gave it, and maintained her deception on the occasions when Ms Ireland checked it with her prior to publication. It follows, and I find, that her statement in the agreement of 29 September 2003 that the information given “… will be true and given in good faith” was also false. I find that her actions initiated the publication, which became the cause of the damage to her husband. She must share responsibility for that damage.

42 With regard to Cantali’s responsibility, in my opinion, justice requires that she, too, must share responsibility for the damage caused to the plaintiff. I am satisfied on the evidence that she knowingly participated in her sister’s deception, particularly in the concoction concerning the plaintiff in bed with Michelle whilst Rinaldi was in hospital.

43 In measuring the degree of responsibility of Cobbittee it is relevant that it never acted merely as a conduit of Rinaldi’s information. It was not suggested that it did not control the content of what it published. Cobbittee had no obligation to use the information, but having decided to do so it was obliged to take reasonable steps to ensure that it got its facts right before launching a damaging attack on the plaintiff in its magazine (Austin, pp 363, 364). This, in my opinion, it failed to do.

44 There was no evidence from anyone who exercised editorial responsibility. I infer from Ms Ireland’s evidence that Cobbittee relied on her skill and judgment in proceeding to publish the matter. Relevantly, her enquiries were limited to obtaining assurances from her informants and information from a features writer which confirmed the existence of the brothel. Although she gave no evidence about it, it is unimaginable that Ms Ireland was not aware from the outset of the seriousness of the allegations made by Rinaldi, and of the likelihood that publication of them in her article would be highly damaging to the plaintiff. There was no evidence that Ms Ireland made enquiries about either Rinaldi or Cantali relevant to forming a reasonable belief as to the truth of the information which they gave her (Morgan, p 388). The evidence did not indicate that she tested their responses in any way. It may be assumed that had she done these things there would be evidence about it.

45 In my opinion Ms Ireland’s evidence, scant as it is, supports the finding, which I make, that she simply accepted what her informants told her without making any attempt to obtain corroboration in circumstances where the dictates of reasonableness required her to do so. Rather than acceptance, it might have been expected that she would have met the cross-defendants’ assurances with a response similar to that given by Ms Mandy Rice-Davies to Lord Astor’s denial: “Well he would, wouldn’t he?”. Her evidence of checking the existence of the brothel is worthy of little weight with regard to the substance of each imputation. Similarly, little weight should be given to Rinaldi’s assurance in the agreement of 29 September 2003 which goes no further than those given orally.

46 It was accepted by Cobbittee that no enquiry was made of the plaintiff prior to publication. There was no evidence to explain why this very obvious and necessary line of enquiry was not followed. Had there been such an enquiry it may be inferred that the matter would not have been published and hence the plaintiff would not have suffered damage. Absent evidence, it is difficult to understand the readiness to accept without independent corroboration the assertions of an informant whose interest in damaging the plaintiff was plain from the very nature of them. Absent reliable verification the risk of damage resulting from the publication was one of which Cobbittee was, or ought to have been, aware. My overall assessment of Cobbittee’s conduct is that it altogether failed to satisfy any of the usual criteria by which the reasonableness of a publisher’s conduct is measured.

47 Although Rinaldi and Cantali by their conduct in providing for publication false information which they claimed to be true ultimately caused the plaintiff damage, as a matter of practical reality and common sense it was the publication of that information by Cobbittee which was the operative conduct in causing the damage. Put another way, the cross-defendants provided the raw material but Cobbittee failed to exercise any reasonable quality control before putting it out for public consumption. In my assessment it was the conduct of Cobbittee in proceeding to publish a highly damaging article in circumstances where it was unreasonable to do so which was the significant cause of the harm. Accordingly, Cobbittee must bear the major responsibility.

48 It follows that I reject Cobbittee’s claim for full indemnity.

49 For these reasons I hold that responsibility for the plaintiff’s damage should be apportioned 80 per cent to Cobbittee, 15 per cent to Rinaldi, and 5 per cent to Cantali. The right of a defendant tortfeasor to recover contribution from a concurrent tortfeasor under s 5 of the Act extends to and includes any costs recoverable by the plaintiff. (James Hardie & Coy Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679). Accordingly, there should be an order for contribution in favour of Cobbittee against Rinaldi in the sum of $24,750.00, and an order for contribution in favour of Cobbittee against Cantali in the sum of $8,250.00.

The claim under the agreement

50 As against Rinaldi, Cobbittee has in its favour judgment in default for breaches of the terms of the agreement of 29 September 2003 that the information she provided would be true and would be given in good faith. Cobbittee, further and in the alternative to its claim for contribution, claims damages against Rinaldi arising from these breaches said to comprise the amount paid out to the plaintiff to compromise his claim and its costs incurred in defending that claim.

51 Cobbittee has the onus of showing that the loss for which it claims damages was caused by the breaches relied upon. The issue is one of fact to be decided with regard to considerations of practical reality and common sense.

52 For the purpose of apportionment, I have already found that it was the publication by Cobbittee of the information provided which was the operative conduct in causing the harm to the plaintiff.

53 For the purpose of this claim, in my opinion the evidence does not establish that the provision to Cobbittee of false information in breach of the agreement was the effective cause of the harm to the plaintiff for which Cobbittee was liable. The extent, if any, of the use by Cobbittee of this information was something over which Rinaldi had no control whatsoever. Irrespective of the informant’s warranties it was incumbent upon Cobbittee, in the circumstances, to make reasonable enquiries for the independent corroboration of the information prior to publication of grossly defamatory imputations. The warranties could not operate to relieve Cobbittee of the requirement to take these steps. I have earlier found that it may be inferred that, had reasonable enquiries been made, at least of the plaintiff, the falsity of the information would have been revealed, publication would not have taken place, and the loss of which Cobbittee now complains would have been averted.

54 Nevertheless, Cobbittee proceeded to publish, and in doing so ran the risk of liability to the plaintiff for the harm caused to him by its publication. That harm was caused by the publication of the matter in the magazine in circumstances where Cobbittee had chosen to publish without taking reasonable steps to ascertain the truth of the information provided to it under the agreement.

55 For the above reasons I find that Cobbittee has failed to establish that the breaches by Rinaldi of the agreement materially caused or contributed to the loss suffered by Cobbittee as a consequence of its liability to the plaintiff for the publication. To the contrary, in my opinion, the effective cause of the loss was the conduct of Cobbittee itself.

56 Accordingly, the claim for damages for breach of the agreement is dismissed.

Conclusion

57 It is appropriate that Cobbittee be given the opportunity to be heard with respect to the form of orders to give effect to these reasons, and as to costs, and interest. I therefore stand these proceedings over to the defamation directions list 9.30am 17 July 2006 for that purpose.

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