Attrill v Christie

[2007] NSWSC 1386

CITATION:	Attrill v Christie [2007] NSWSC 1386 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19/11/07
JUDGMENT DATE :	19 December 2007
JUDGMENT OF:	Bell J at 1
DECISION:	Award the sum of $110,000; Judgment will be entered in the sum specified with interest calculated at 2 per cent; The parties may bring in a minute of judgment incorporating the order for costs. In the event that there is any issue concerning a special order for costs, the matter may be re-listed on three days notice
CATCHWORDS:	DAMAGES - Defamation Act 2005 - imputations of criminality
LEGISLATION CITED:	Defamation Act 2005
CASES CITED:	Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chakravarti v Advertisers Newspapers Ltd (1998) 193 CLR 519 Crampton v Nugawela (1996) 41 NSWLR 176 Dingle v Associated Newspapers [1964] AC 317 Hodge v TCN Channel Nine [2006] NSWSC 933 McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059 Rogers v Nationwide News Pty Limited (2003) 216 CLR 327 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR
PARTIES:	Gerald Hart Attrill (Plaintiff) Ronald George Christie (Defendant)
FILE NUMBER(S):	SC 20158/06
COUNSEL:	S M Littlemore QC / S Chrysanthou (Plaintiff) K P Smark SC / D Hand (Defendant)
SOLICITORS:	Larbalestier & Co (Plaintiff) R Christie (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday 19 December 2007

20158/06 Gerald Hart Attrill v Ronald George Christie

JUDGMENT

1 BELL J: By statement of claim filed on 5 May 2006 the plaintiff claims damages for defamation arising out of the publication in or about February 2006 of certain words said by the defendant to a journalist employed by the licensee of TCN Channel Nine in the course of a video taped interview. The statements were made in the knowledge that they would be re-published as part of an item broadcast on the Nine Network in the program “A Current Affair” (the program). They were broadcast throughout Australia on 14 February 2006. The plaintiff sues the defendant for the publication of the words to the journalist and for their re-publication in the course of the broadcast of the program.

2 The words upon which the claim is brought and which it is acknowledged were published of and concerning the plaintiff are:

(a) He’s nothing more than a con man.
(b) I’ve had so many phone calls and I’ve been in contact with so many families that have been absolutely devastated by losing their children to this man’s particular occult.
(c) The day he’s behind bars will be a day when not only me but thousands of people and families around this country would be very happy and pleased to see.

3 In accordance with the Rules the plaintiff specified the imputations on which he relies as defamatory of him arising out of the matter:

(a) That he is a criminal, being a con-man or confidence trickster.
Particulars: This imputation is carried by the words at paragraph 2(a) above;
(b) That by occult practices, he has devastated families by causing them to lose their children.
Particulars: This imputation is carried by the words at paragraph 2(b) above;
(c) That because he has conned thousands of people, he deserves to be behind bars.
Particulars: This imputation is carried by the words at paragraphs 2(a), (b) and (c).

4 The claim is brought under the Defamation Act 2005 (the Act). Section 8 of the Act provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person, even if more than one defamatory imputation about the person is carried by the matter.

5 The defendant concedes that the words, set out in paragraph [2] above, are defamatory of the plaintiff and acknowledges his liability for their re-publication during the broadcast of the program.

6 Mr Smark SC, who with Mr Hand, appeared on the defendant’s behalf submitted that the ordinary reasonable viewer would not take from the words set out at paragraph 2(b) above that the plaintiff had separated children from their families by occult practices. He acknowledged that little may turn on the point given that no defence was raised which required consideration of a specific imputation and the concession that the matter was defamatory in the respects particularised as imputations (a) and (c). This is so. To the extent that anything turns on it, bearing in mind that this was a transient publication, I consider that the words set out in 2(b) above would have been understood by the ordinary reasonable viewer as conveying the meaning for which the plaintiff contends.

7 The plaintiff does not claim special damages, nor damages by way of a general loss of business or custom. The claim which is pleaded in paragraph 6(b), for aggravated damages, was abandoned at the hearing.

8 The defendant did not rely on any defence and the hearing proceeded as an assessment of the damages. The plaintiff gave evidence of injury to his feelings and to his reputation and led evidence from a number of witnesses going to these issues.

9 No evidence was led of the size of the audience of the program. It was conceded by the defendant that the determination of the plaintiff’s damages should be approached upon the basis that the re-publication of the defendant’s words in the course of the program was to a wide audience throughout Australia.

10 The segment of the program, which included the statements made by the defendant, was a rather sensational piece focussed on the plaintiff, which occupied around three minutes. The defendant’s statements were edited into the segment close to halfway through it and very close to the end of it. The transcript of the entire segment is in evidence. It is reproduced below.

1. Tracey Grimshaw : Well now to the man whose followers believe he is Jesus Christ. But our

2. investigation shows there is nothing divine about him. In fact quite the

3. opposite. He separates Australians who fall under his spell from their

4. money and from their families.

5. NICOLA SHAW : I did anything he asked me to do. Absolutely anything to the point

6. where I would have, I would have done, you know, killed my family.

7. MARTIN KING : I beg your pardon?

8. SHAW : You live everyday thinking that you’re on God’s true mission and

9. Jessa O My Heart is, I believed he was Jesus Christ and that’s where

10. everything got brainwashed.

11. They belonged to a mysterious cult called Hermes Far Eastern Shining.

12. And their shining light was a man who calls himself Jessa O My Heart.

13.

14. Sir, can I talk to you about your cult?

15. JESSA O MY HEART : No. You can’t.

16. KING : And the fact that you control people and control people’s lives?

17. JESSA O MY HEART : Go away … silly person.

18. KING : The belief of this cult is that the outside world is toxic. They believe the

19. pot-bellied man born Gerald Attrill in Tasmania 64 years ago is the

20. divine presence. An alchemist with the gift to empower anything from

21. water to food to clothing.

22. IVA NOBEL : Now what he’s done that nobody has done, he’s made products that

23. allow you to be touched by the hand of the divine.

24. KING : Iva Nobel stopped us talking to Jessa. He’s a believer but not enough of

25. one to face the camera.

26. NOBEL : It’s about enlightenment.

27. KING : So he …

28. NOBEL : It’s about enlightenment.

29. KING : So he makes these special products”

30. NOBEL : Well, yeah he yeah, well Hermes Far Eastern Shining make these

31. products.

32. KING : But he blesses them:

33. NOBEL : Well, he empowers them.

34. SHAW : He destroyed my emotional and mental state for many years. Seven

35. years.

36. KING : Nicola Shaw was a believer too. As. She lived inside the cult in

37. Telgam, Northern New South Wales for three years. Parted with

38. $10,000.

39. SHAW : When I left the cult I didn’t want to have anything to do with life. I um,

40. was dreaming of dying.

41. KING : The Divine Presence as he calls himself doesn’t mix with people like you

42. and me. We’re way too toxic. But there is one way you can get close to

43. this man who wields so much power over his followers. And that is

44. through this door. In this building in Murwillumbah we are offered

45. thousands of dollars worth of products. There’s disks, pendants,

46. necklaces, empowered wands and special water.

47. SHAW : I used to be walking around with 4 wands in every hand. I’d have about

48. 8 pendants around my neck, holding onto them with dear life. It just got

49. ridiculous. It was all revolved around fear that you were going to get

50. toxic.

51. KING : Our producer, Lisa, spent months investigating the group. To get inside

52. the cult she told these women she was a victim of physical abuse, she

53. was emotionally damaged and felt lost. Their response; to extract as much

54. money from her as possible.

55. KING : How did you go?

56. LISA : It depends on how you look at it. It did get a personalised pendant which

57. is quite a big deal within Hermes.

58. KING : How much was that?

59. LISA : $700.00.

60. KING : $700.00?

61. LISA : Yes, but it has been empowered by Jessa O My Heart.

62. RON CHRISTIE : He’s nothing more than a conman.

63. KING : Ron Christie, a Hobart city Alderman, is a strong campaigner against

64. Jessa O My Heart.

65. CHRISTIE : I’ve had so many phone calls and I’ve been in contact with so many

66. families that have been absolutely devastated by losing their children to

67. this man’s particular occult.

68. KING : The cult used to be called Infinity Forms of Yellow Remember. It’s

69. worth remembering that in 2002 the New South Wales Department of

70. Fair Trading took out a Supreme Court injunction against the group.

71. JOHN WATKINS : Just plain old water.

72. KING: The reason; it claimed it’s special water at $80.00 a small bottle cured

73. cancer.

74. LISA : Here we go. This is an energy house.

75. KING : And what does the energy house do?

76. LISA : Well you can put it in your car, home, office, wherever and it clears all

77. the negative energy.

78. KING : Lisa was invited back to spend more money. The total now, almost

79. $2,000.

80. LISA : I got these four stickers for my phone at $55.00. These, um, stop any

81. rays or waves or whatever that may come from using the phone.

82. KING : How did people exist financially?

83. SHAW : Well, when I was there, everyone was on Centrelink.

84. KING : Did you commit Centrelink fraud?

85. SHAW : Definitely. I was working and getting the benefit and other people were

86. putting forms for me in other states when I wasn’t actually there.

87. KING : Nice car!

88. Mr O My Heart doesn’t drive. His constant female companions do. And

89. no he doesn’t want to talk about nice cars. Or an extensive portfolio of

90. properties. Jessa’s main address at the foot of the aptly named Mount

91. Warning is a ripper. It’s registered to Paris Bernie and Fallon Fuzzy

92. Bops the Boom.

93. GLORIA NELSON : The last time I talked to my daughter was really ten years ago.

94. KING : Gloria Nelson from Wisconsin in America is a heartbroken mother. In

95. 1996 mother and daughter were tourists in Australia. Gloria went home

96. to the States but Ingrid stayed behind with friends. She met the cult

97. leader on the Gold Coast and severed all contact with her family.

98. NELSON : You know, I don’t have those, those phone calls anymore.

99. SHAW : They put you against your family. Jessa used to say that my mother was

100. a black spider and that she was full of fear.

101. UNIDENTIFIED
102. WOMAN : Again, I’m just asking you guys to leave.

103. KING : Get anywhere near one of his properties and you get paranoia.

104. Yeah, look we’re on a highway in the middle of nowhere, okay. We’re

105. happy. Please.

106. UNIDENTIFIED
107. WOMAN : You’re not on a highway in the middle of a property. You’re trying to …

108. KING : In the middle of nowhere.

109. SHAW : If he really is the second coming, why isn’t he walking the streets healing

110. people. Why does it have to cost money?

111. UNIDENTIFIED
112. WOMAN : I’m not responding to this.

113. CHRISTIE : The day he’s behind bars will be a day when not only me but thousands

114. of people and families around this country would be very very happy and

115. pleased to see.

116. SHAW : The parents of those people in there need to be worried because they will

117. do anything for this man.

118. GRIMSHAW : Martin King reporting there.

11 The plaintiff is aged 66 years. He was born and raised in Tasmania. He studied psychology at university and worked for a number of years as a clinical psychologist at the Wayside Chapel in Sydney and in the Northern Territory. For a time he lectured in psychology at the College of Advanced Education, Toowoomba.

12 During the 1970’s the plaintiff and his wife, Drew Porter, moved by Byron Bay where they opened a health food shop and, later, a bookshop and café. At this time the plaintiff was interested in the writings of Adi Da, a spiritual leader. The plaintiff and his wife moved to Melbourne to live and work with an Adidam community. They opened a vegetarian health food business in Melbourne, which was very successful. They were also involved in the management of a vegetarian restaurant, which was located in Melbourne.

13 Around 1984 the plaintiff and his wife moved back to Byron Bay. The plaintiff became involved in a business selling lighting products. Around this time he and his wife ceased living together, however they maintained an amicable relationship and continued as business partners.

14 In 1996 the plaintiff and his wife were involved in establishing a company to produce and market holistic living products. The business initially operated under the name Forms of Yellow Remember. In 2002 the company moved its operations from Byron Bay to Murwillumbah. It presently operates under the name Hermes Far Eastern Shining Pty Limited. The plaintiff is in semi-retirement, although he still is involved in the production of products for Hermes.

15 The plaintiff describes his main interest as holistic lifestyles. The products marketed by Hermes are described as being imbued with particular energy which may be focussed to address specific disorders.

16 There is a community of around 40 people living in the Tyalgum area, described as “the Hermes community”, who are sympathetic to the plaintiff’s holistic practice.

17 The plaintiff described the persons outside his sphere of influence as being generally “downright antagonistic” to his practice.

18 The plaintiff has never met the defendant and was not notified by him of the allegations that he had made nor was he given an opportunity to respond to them.

19 The plaintiff did not watch the program when it was aired. He was told of the things that the defendant had said about him by friends who had seen the program. The first time that the plaintiff viewed the program was around six months prior to the hearing of the claim.

20 The plaintiff said in answer to a leading question asked by his counsel that he had been shunned or avoided since the broadcast. He went on to say that he had not often been accustomed to speaking to townspeople in Murwillumbah and that he had not particularly noticed a difference in the attitude of people to him because he never spoke with them anyway. He said that he had ceased breakfasting at the café operated by his wife in Murwillumbah as a result of the broadcast of the program because “I didn’t want to be looked at, stared at, muttered about, things like that”. (T 9.20-21) He said, and I accept, that he had sought to avoid contact with people following the broadcast. He had been approached by people after the broadcast who raised the content of it with him. He did not say that the comments that had been made to him were derogatory, but he had been affected by hearing discussion of the matter. He instanced an occasion when the owner of the record shop approached him on the street saying, “don’t worry, it will be alright”. (T 9.53-54)

21 The plaintiff experienced difficulty sleeping as the result of the broadcast of the program. He dyed his hair in an effort to change his appearance. He took a trip to Tasmania to get away from the upset that the program had caused to him. He was asked if there was any difference in the reaction of the friends whom he contacted in Tasmania. He said that he had only seen one person who was pretty good in relation to him. However he went on to describe an occasion when he had invited an old friend for coffee and been rebuffed by being told that the friend’s wife would not permit him to meet him.

22 The defendant has not apologised, nor offered to apologise, to the plaintiff.

23 The plaintiff said that the distress caused by the broadcast of the program mostly arose from the statements made by the defendant. The plaintiff had never been accused of being a criminal and this was a particularly hurtful allegation.

24 When the plaintiff viewed the program he was upset by a number of features of it, including the ambush style of journalism, the allegations made by Ms Shaw and by the journalist and Ms Grimshaw. Generally the program made hurtful claims that were untrue and distressing to him. However, being called a con man with the suggestion that he ought to be behind bars was about the worst thing that the plaintiff considered could be said about a person.

25 Drew Porter, gave evidence of the plaintiff’s work with the Crisis Centre at the Wayside Chapel and of his help to many people who attended it. His reputation in the circles in which they moved at that time was of being a very helpful, useful and amicable person. (T 36.6-7)

26 Ms Porter said that when she and the plaintiff first moved to Murwillumbah the plaintiff had established relationships with the local townspeople and was regarded as an “amicable and caring person”. (T 37.48)

27 Ms Porter did not see the program at the time it was broadcast. She noted an immediate change in the plaintiff after the broadcast of the program. He became very anxious about what he called the “mob mentality”. (T 38.23-240) He tended to avoid driving through the town and visiting the café. She had heard people walk past the café and make remarks, such as “this is where the cult man is, don’t come into this café”. (T 38.55) Ms Porter recalled remarks being made to the effect that the plaintiff was a criminal and that he should be in gaol. (T 39.10) Ms Porter recommended that the plaintiff take a trip to Tasmania to get away from the attention that had been generated by the program. They maintained contact during his absence and to her observation he became more distressed while in Tasmania. She flew down and brought him back to Murwillumbah where she arranged for him to get medical attention. Ms Porter confirmed that the statements made on the program which had been “reverberating” for the plaintiff related to the assertion that he was a criminal and should be in gaol.

28 Mr Kurare, is the General Manager of Hermes Far Eastern Shining Pty Limited. Mr Kurare came to know the plaintiff in 2000, when he travelled to Byron Bay to meet the people responsible for the production of the Hermes range of products, which he had found to be beneficial. After a relatively short interval Mr Kurare commenced working for Hermes Far Eastern Shining. Mr Kurare is involved in the Tyalgum District Community Association and with the Murwillumbah Chamber of Commerce. He was aware of the plaintiff’s reputation in the Murwillumbah community prior to the broadcast of the program. The plaintiff had a good reputation. Mr Kurare put it this way, “I would say that people found him to be a very kind and decent man and held him in high esteem”. (T 42.50-51)

29 Mr Kurare was in Sydney at the time of the broadcast of the program. He viewed it when it went to air. In the aftermath many people made negative remarks about the plaintiff to him. He had been questioned about the allegation that the plaintiff was a con man and whether the plaintiff actually broke up families. Generally Mr Kurare was questioned about the plaintiff’s honesty and integrity. The queries came from people in Murwillumbah, but also from all over Australia. When Mr Kurare returned to his family’s home in South Australia relatives and friends asked questions about the claims made by the defendant that had been broadcast in the program. Mr Kurare said that friends and business associates whom he knew throughout Australia had questioned him concerning the allegations that had been aired.

30 Theme Rains, who is the Director of a company which markets skincare products, lives in the Tyalgum community. She mixes with members of the Hermes community. She has known the plaintiff for about nine years. She gave evidence of the plaintiff’s reputation within the business community of Murwillumbah and the Hermes community as being of a quiet person, who was well liked and respected.

31 Ms Rains had observed an extreme difference in the plaintiff’s behaviour following the broadcast of the program. He ceased attending the Café and other places that he had frequented in Murwillumbah. On one occasion Ms Rains was present when a complete stranger approached the plaintiff saying words to the effect, “people will forget about it in time”. Ms Rains observed that the plaintiff appeared disturbed by this approach.

32 Ms Rains was present with the plaintiff in Tasmania on an occasion when the owner of a shop at Salamanca Place said to him, “oh, sorry mate, all the stuff that Christie has been saying about you, is it true”. On another occasion Ms Rains and the plaintiff went to a restaurant, which he had frequented prior to the broadcast of the program. A group seated at a table stared at him as he crossed the room. The plaintiff and Ms Rains had been made to feel uncomfortable and they left.

33 Two affidavits were read in the plaintiff’s case. Kevin Wayne Yeo first met the plaintiff in about 1994, when he was working as a real estate agent in Murwillumbah. Mr Yeo had sold properties to the plaintiff. Mr Yeo mixes in circles, which include the general Murwillumbah community. In these circles prior to the broadcast of the program the plaintiff was reasonably well known, although he did not have a high profile in the town. His reputation in Murwillumbah was that of a serious and respectable person. Since the program was aired in February 2006 Mr Yeo has heard many comments about the plaintiff from people in Murwillumbah to the effect that the plaintiff is a con man and dishonest. Mr Yeo instances a remark made by one of his friends to the effect that the plaintiff “had taken off with a couple of million dollars and left the country to hide away from the reality of what he is”. Mr Yeo has heard other people saying words to the effect that, “he is ripping people off” and that “he is a fraudster and a con artist”.

34 Gregory Wilson is a teacher at the North Coast Institute of TAFE. He first met the plaintiff in early 1997. Mr Wilson mixes in circles, which include the Hermes community. In those circles the plaintiff is held in high regard as a caring, honest and ethical person.

35 Division 3 of Part 4 of the Act makes provision for the award of damages. Relevantly it provides:

34 Damages to bear relational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
35 Damages for non-economic loss limited
(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount ) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).
(4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.
…
36 State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.

36 No evidence was led by the defendant in mitigation of damages.

37 The maximum damages amount has been increased to the sum of $267,500, by declaration published in the Government Gazette on 15 June 2007.

38 In making an assessment of the damages to be awarded under the Act the Court is to have regard to the purposes of damages for defamation explained in the joint reasons in Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44 per Mason CJ, Deane, Dawson and Gaudron JJ at 60. These are consolation for the personal distress and hurt caused by the publication, reparation for the harm done to the plaintiff’s reputation and vindication of his reputation. Their honours observed that the three purposes overlap and approved the observation made by Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at 150 that, “the amount of the verdict is the product of inextricable considerations”.

39 In the joint reasons in Carson their Honours commented on the “need to ensure a rational relationship between the scale of values applied in defamation and in personal injuries cases” (at 64). The Defamation Act 1974 (the former Act) was amended after Carson to insert s 46A. Section 46A(1) was in the same terms as s 34 of the Act. Section 46A(2) required the court in determining the amount of the award of damages for non-economic loss in proceedings brought in defamation to take into consideration the general range of damages for non-economic loss in personal injury awards (including awards made under any statute regulating the amount of the award) and has no counterpart in the Act.

40 Mr Littlemore QC, who with Ms Chrysanthou appeared on the plaintiff’s behalf, submitted that this was a serious defamation, which required that vindication be accorded central importance. The plaintiff had been accused of criminal conduct deserving of imprisonment and the award should be such that the plaintiff can point to it as demonstrating the utter falsity of the allegations: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61. I accept that is so.

41 In Mr Littlemore’s submission the maximum damages amount specified in s 35(1) of the Act serves to cap awards for non-economic loss but does not otherwise inform the determination of the appropriate sum. In his submission, the Court fixes a sum by reference to the purposes of damages as explained in Carson, ensuring the appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded, but without regard to the maximum damages amount. In his submission, if it had been intended that the maximum damages amount fix the upper limit of a range it is to be expected that it would have been stated to represent a most extreme case or the like.

42 In Mr Littlemore’s submission the seriousness of this defamation was deserving of an award of general damages in an amount of or above the maximum damages amount. He sought to illustrate this by reference to a number of cases in which very substantial awards had been made: Crampton v Nugawela (1996) 41 NSWLR 176; NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147; Hodge v TCN Channel Nine [2006] NSWSC 933 and Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059.

43 In Mr Smark’s submission there is little to be gained by considering the range of awards for non-economic loss in defamation actions prior to the Act. He submitted that the maximum damages amount is to be taken as representing the presumptive outer limit of awards for non-economic loss. His submission drew on the judgment of Hayne J (with whose judgment on the question of damages Gleeson CJ and Gummow J concurred) in Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at 353 dealing with the relationship between subsections (1) and (2) of s 46A of the former Act:

[76] The second effect of s 46A(2) flows from both the reference to the "general range" of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages to be allowed are regulated by statute. Treating cases where the damages allowable are capped by statute as included within the "general range" to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way.

44 I approach the matter on the basis that the maximum damages amount provided by s 35 is to be understood as fixing the outer limit of damages for non-economic loss (in cases which do not warrant an award of aggravated damages) and by analogy with the approach explained by Hayne awards for non-economic loss are to find a place within a range marked out in this way. This is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable.

45 In determining the amount of damages to be awarded to the plaintiff I am required to ensure that there is an appropriate and rational relationship between the harm sustained by him and the amount of the award. In this case it is necessary to make that assessment in circumstances in which the plaintiff’s evidence of the hurt to his feelings must be assessed in a context which includes that the allegations for which the defendant is not liable were also hurtful to him. This does not involve mitigating the damages to be awarded by any consideration that the plaintiff’s reputation was damaged by the publication of the allegations for which the defendant is not responsible on the program: Dingle v Associated Newspapers [1964] AC 317; Chakravarti v Advertisers Newspapers Ltd (1998) 193 CLR 519.

46 What it is necessary to do is to fix an amount that properly reflects the injury to the plaintiff’s reputation and hurt to his feelings brought about by reason of the defendant’s statements which were re-published during the program. The task is made more difficult by the circumstance that the plaintiff did not see the program until well after the present proceedings were commenced. The distress that he experienced in the aftermath of the broadcast was as the result of the things told to him by others about it, which included the substance of the things said by the defendant and the substance of allegations made by others. I am satisfied that the plaintiff suffered significant hurt on learning of the defendant’s statements and in particular those that imputed criminality to him. He led evidence, which I accept, of the damage done to his reputation among members of the general community in Murwillumbah.

47 The harm done to the plaintiff, by the re-publication of the defendant’s defamatory statements on a popular television program having a wide viewing audience justifies a substantial award of damages. The injury done to the plaintiff’s reputation is significant and it is necessary that the award clearly signify that the allegations are without foundation. Weighing up these considerations I have concluded that the appropriate award is the sum of $110,000.

48 Mr Littlemore did not press the submission advanced in written submissions concerning the calculation of interest. Judgment will be entered in the sum specified with interest calculated at 2 per cent.

49 The parties may bring in a minute of judgment incorporating the order for costs. In the event that there is any issue concerning a special order for costs, the matter may be re-listed on three days notice.

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21/12/2007 - Inclusion of Ms Chrysanthou - Paragraph(s) [40]