C v L & ORS
[2005] SASC 315
•18 August 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
C v L & ORS
Judgment of The Full Court
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
18 August 2005
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - IN GENERAL
DEFAMATION - FAIR COMMENT
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - SPECIAL MATTERS TO BE CONSIDERED BY JURY - AGGRAVATION
Appeal and cross-appeal against orders made by Judge of District Court awarding plaintiff damages for defamation – interview with first defendant for television programme relating to breakdown of her de facto relationship with the plaintiff and action under the De Facto Relationships Act 1996 – reference to the plaintiff treating women “like a doormat” – meaning conveyed to the ordinary reasonable viewer – relevance of most damaging meaning of words – defence of fair comment on matter of public interest – foundation of fact – assessment of damages – loss of reputation – grief or annoyance – matters of aggravation – partial justification – damages awarded manifestly inadequate – appeal allowed for the purpose of increasing damages – cross-appeal dismissed.
De Facto Relationships Act 1996 ss 10, 11; Supreme Court Rules 1987 rr 78.03, 95.01, referred to.
L v C [2002] SADC 36, discussed.
Pamplin v Express Newspapers [1988] 1 WLR 116; Gumina v Williams (No 2) (1990) 3 WAR 351; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Lewis v Daily Telegraph Ltd [1963] 1 QB 340; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Farquhar v Bottom & Anor [1980] 2 NSWLR 380; Chakravarti v Advertiser Newspapers Ltd (1966) 65 SASR 527; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Lewis v Daily Telegraph Ltd [1964] AC 234; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Corse v Robinson (unreported, Supreme Court of Western Australia, Malcolm CJ, Owen and Steytler JJ, 8 December 1997); Nationwide News Pty Ltd & Ors v Abboud & Anor (unreported, Supreme Court of Western Australia, Malcolm CJ, Pidgeon and Franklyn JJ, 12 September 1996); John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12; Ronci v Nationwide News Pty Ltd & Anor (unreported, Supreme Court of Western Australia, Steytler J, 21 June 1996); Keays v Murdoch Magazines (UK) Ltd & Anor [1991] 1 WLR 1184; Mapp v News Group Newspapers Ltd [1998] QB 520; McCann v Scottish Media Newspapers Ltd (2000) SLR 256 OH; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175; London Artists Ltd v Littler [1969] 2 QB 375; Farquhar v Bottom & Anor [1980] 2 NSWLR 380; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; Rocca v Manhire (1992) 57 SASR 224; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Rantzen v Mirror Group Newspapers Ltd [1994] QB 670; Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71; Kay v Cunningham & Anor [1995] SASC S5242; Georgeff v SA Telecasters Ltd [1999] SADC 151; Chapman & Ors v Allan & Draper [1992] SASC 460; Butcher v Channel 9 South Australia Pty Ltd [2001] SADC 88; Allen v Johnstone [2004] SADC 56, considered.
C v L & ORS
[2005] SASC 315Full Court: Besanko, Anderson and Layton JJ
BESANKO J: This is an appeal from orders made by a Judge of the District Court. The plaintiff brought an action in that court against nine defendants claiming damages, including aggravated and exemplary damages, for libel, interest and costs. The plaintiff is C and the first defendant is L. The other defendants are Channel 9 South Australia Pty Ltd (“Channel 9”), the second defendant, Swan Television & Radio Broadcasters Pty Ltd (“Swan Television”), the third defendant, TCN Channel Nine Pty Ltd (“TCN Channel Nine”), the sixth defendant, General Television Corporation Pty Ltd (“General Television”), the seventh defendant, Queensland Television Limited (“Queensland Television”), the eighth defendant, and Territory Television Pty Ltd (“Territory Television”), the ninth defendant. There were two other defendants to the action, WIN Television Tas Pty Ltd and WIN Television NSW Pty Ltd, but the plaintiff discontinued his action against those defendants.
The plaintiff and the first defendant lived in a de facto relationship from December 1989 to September 1997. On 18 September 1998, the first defendant brought an action under ss 10 and 11 of the De Facto Relationships Act 1996 claiming relief under that Act. The action proceeded to trial before his Honour Judge Smith of the District Court and, on 12 April 2002, Judge Smith made an order that the plaintiff pay to the first defendant a lump sum of $450,000 (L v C [2002] SADC 36).
The Nine Network Australia Ltd owns TCN Channel Nine, General Television, Queensland Television and Territory Television and has agreements in place with the Channel 9 and Swan Television whereby those defendants broadcast materials provided by it. Nine Network Australia Ltd produces a television programme called “A Current Affair” (“ACA”).
On Monday 8 July 2002, the first defendant gave an interview to a journalist, Ms Sonya Madigan, representing ACA, relating to her de facto relationship with the plaintiff and the action she brought under the De Facto Relationships Act 1996. Following the interview with the first defendant, a segment dealing with those matters was prepared and it was arranged that it would form part of the ACA programme to be broadcast on Monday 15 July 2002. Promotions were prepared to advertise that segment of the programme and, in the period between Friday 12 July and the airing of the ACA programme on Monday 15 July 2002, the promotions were broadcast by each of the broadcasters, namely the defendants other than the first defendant, on between 30 and 40 occasions. On Monday 15 July 2002, the ACA programme contained a segment of approximately 12 minutes’ duration during which the de facto relationship between the plaintiff and the first defendant, the breakdown of that relationship and its consequences in terms of the action before Judge Smith and the orders he made were discussed. Like the Judge below, I will refer to this segment as “the edition”. The edition and the promotions which preceded it were broadcast to audiences of ACA in South Australia by Channel 9, in Western Australia by Swan Television, in New South Wales by TCN Channel Nine, in Victoria by General Television Corporation, in Queensland by Queensland Television and in the Northern Territory by Territory Television.
In the action in the District Court, the plaintiff claimed that in each of interview, the promotions and the edition he was defamed, and he sought compensatory and exemplary damages from the defendants.
The Judge found that although the first defendant’s statements in the course of the interview were defamatory, they were protected by the defence of fair comment on a matter of public interest. That conclusion of the Judge is not challenged on appeal.
The Judge found that statements made in the course of both the promotions and the edition were defamatory and that each of the defendants was liable to pay damages to the plaintiff. The Judge found that the first defendant was not liable on her own account for the interview, but that she was jointly and severally liable with each of the defendants for their separate publications on the basis that she appreciated the likelihood of the whole interview or parts of it being published in permanent form as a broadcast. Therefore she was liable as a joint tortfeasor for any resulting broadcast libels. Relevantly, the Judge made the following orders:
1.Judgment for the plaintiff against the first, second, third, sixth, seventh, eighth and ninth defendants in the sum of $38,000.00, divided between them as follows:
1.1
As against the first defendant, she will not be liable on her own account for the interview but will be jointly and severally liable with each of the following defendants for their separate publications and in the following amounts:
1.2 As against the second defendant in the sum of: $12,000 1.3 As against the third defendant in the sum of: $3,000 1.4 As against the sixth defendant in the sum of: $10,000 1.5 As against the seventh defendant in the sum of: $6,000 1.6 As against the eighth defendant in the sum of: $4,000 1.7 As against the ninth defendant in the sum of: $3,000 $38,000 2.That the defendants pay to the plaintiff a lump sum in lieu of interest on the judgment sum, being an amount of $2,250.00
The Judge also made orders as to the costs of the trial which were not the subject of separate challenge, but which may need to be reconsidered in light of my conclusions on the appeal.
There were a large number of issues before the Judge. However, there are only three issues on the appeal. First, in his notice of appeal, the plaintiff complains of the Judge’s findings as to the defamatory meanings conveyed by the promotions and by the edition. Secondly, the plaintiff complains of the Judge’s assessment of damages. He complains of a number of specific matters in relation to damages, but he also submits that the award of damages is manifestly inadequate. Thirdly, in their notice of cross-appeal, the defendants complain of the Judge’s conclusion that they had not made out the defence of fair comment on a matter of public interest in relation to the promotions and in relation to the edition. The plaintiff has filed a notice of alternative contentions in relation to the cross-appeal and he seeks to uphold the Judge’s decision to reject the defence of fair comment on a matter of public interest on grounds other than those relied upon by the Judge.
It is convenient for me to continue to refer to the parties by reference to their status before the Judge.
The plaintiff requires an extension of time within which to institute the appeal. It seems that he filed his notice of appeal within time, but he did not serve the notice of appeal on the defendants within time. To be properly instituted an appeal must be both filed and served within time (r 95.01 Supreme Court Rules 1987). The defendants also submit that the plaintiff did not serve an application to extend time within the period fixed by me sitting as a single Judge of the Court. Whilst I do not think this particular point is a reason not to extend the time for the institution of the appeal, the plaintiff’s submission that it was irrelevant because the order did not in terms require service lacked merit. In terms of the application to extend time within which to institute the appeal, the delay in this case is not significant, being in the order of five days, and the defendants frankly acknowledge that they are not able to identify any prejudice as a result of the delay. I am satisfied that the time for the institution of the appeal should be extended. It follows that the defendants’ application to have the appeal struck out as incompetent must be dismissed.
Background facts
The Judge made a number of findings about the respective backgrounds of the plaintiff and the first defendant and about their relationship. For the purposes of the appeal it is sufficient to set out those findings in summary form.
The plaintiff was born in November 1935 in rural New South Wales. He graduated in pharmacy from The University of Sydney and shortly afterwards he travelled to the United Kingdom, where he met the woman who was to become his first wife. They married in Australia in 1962 and moved to Adelaide to live. The plaintiff obtained employment in a pharmacy at Elizabeth Park. Over time the plaintiff purchased various delicatessens and supermarkets. He became wealthy and by about mid-1988 his assets totalled in excess of $3 million. In 1986 the plaintiff purchased a house and land at Yatala Vale and also vacant land at Walkerville upon which he and his wife intended to build a small residence. On 13 May 1987, the plaintiff’s wife died.
The first defendant was born in January 1944. After leaving school at age 18 years she worked as a dental nurse and then in a photographic studio. She married in September 1964 and in April 1970 a daughter of the marriage was born. In 1975 the first defendant undertook a beautician’s course and subsequently she obtained work in the beauty industry. In 1976 the first defendant separated from her husband and they were divorced in the following year. The first defendant’s employment in the beauty industry led to various promotions and by 1979 she was the South Australian Sales Manager for Bentley Fragrances. The Judge found that the first defendant held a responsible position which involved a considerable amount of travel. At the time the first defendant met the plaintiff in Adelaide on 17 January 1988 she had assets valued at about $175,000.
I will not set out the details of the early stages of the relationship between the plaintiff and the first defendant. In mid-1988, the plaintiff offered the first defendant an expensive ring and he proposed marriage. The first defendant did not accept either. The relationship thereafter continued, subject to a short break between November 1988 and early 1989, until December 1989, when the first defendant moved in to the plaintiff’s residence at Highbury. Later, both the plaintiff and the first defendant were involved in the design and construction of a house on the plaintiff’s land at Walkerville. They moved into the house in April 1991. Their relationship continued until 22 September 1997, when it was terminated by the plaintiff.
In about the year 2000, the plaintiff became re-acquainted with a childhood friend who was then widowed and they married in August 2001.
Judge Smith delivered his reasons for judgment in relation to the first defendant’s application under the De Facto Relationships Act 1996 on 12 April 2002.
The first defendant was interviewed by Ms Madigan on behalf of ACA on 8 July 2002. It is not necessary to set out the terms of the interview. ACA was also attempting to interview the plaintiff, but he did not wish to be interviewed. The plaintiff’s solicitors wrote to the first defendant’s solicitors on 10 July 2002 suggesting that the parties avoid further publicity. They received a reply on 11 July 2002 wherein the first defendant’s solicitors advised that both they and their client had been interviewed and that they had asked Ms Madigan to avoid sensationalism and intrusion into private lives.
On 11 July 2002, the plaintiff and his new wife flew back to Adelaide after a delayed overseas honeymoon. He was met in the airport arrival lounge by Ms Madigan and a camera crew and he was asked to comment on the judgment delivered by Judge Smith. He declined to do so. He was then pursued by Ms Madigan and the camera crew through the airport and twice more invited to converse, but he again declined to do so.
The promotions were first broadcast on Friday 12 July 2002 and they were broadcast from time to time thereafter up to the time of the edition.
There were three forms of the promotion which were broadcast. They were not significantly different and were in the following terms:
1“You just can’t treat women like a doormat. Adelaide’s jilted lover’s sweet revenge. This case is significant. She did everything for him. Now she has the last laugh. Do you believe she deserved the money?”
2“You just can’t treat women like a doormat. Adelaide’s jilted lover’s sweet revenge. This case is significant. She did everything for him. But this millionaire gave her the boot. You just have to stand firm. Now she has the last laugh. Do you believe she deserved the money?”
3“Plus a jilted lover’s sweet revenge. You just can’t treat women like a doormat. Awarded nearly half a million dollars from her de facto. I think I earnt that much money.”
On the morning of Monday 15 July 2002, the plaintiff’s solicitors sent facsimile letters to the executive producer of ACA and to Channel 9, respectively. The Judge found that the letters were in identical terms, advising that the plaintiff had seen promotions for the edition due to be screened on that evening and considered that they were defamatory and unsupported by the decision in the action heard by Judge Smith. The letter foreshadowed defamation proceedings if the edition was broadcast.
The Judge found that the letter addressed to Channel 9 came to its attention. That finding is not challenged. The Judge found that the letter addressed to the executive producer of ACA was received by ACA and TCN Channel Nine at about 10.50 am CST on 15 July 2002. The Judge found that for the purposes of the receipt of the letter, TCN Channel Nine, General Television, Queensland Television and Territory Television were represented by the executive producer of ACA. The Judge found that there was no evidence that Swan Television was put on notice by a similar letter. The Judge said that he was not satisfied that the letter from the plaintiff’s solicitors was effectively communicated to Swan Television simply by reason of the fact that it was sent to, and received by, the executive producer of ACA or Channel Nine.
Despite the letter, the edition went to air.
The edition was in the following terms:
MIKE MUNRO:- But first, a woman awarded almost half a million dollars after suing her wealthy former de facto. Although a Judge found she bought no material assets to the relationship, he ruled that the woman provided her partner with her most valuable asset and that was companionship.
L:- My use-by date was obviously up and I had to go. You just can’t treat women like a doormat.
REPORTER:- After eight years of de facto bliss, L’s partner C told her it was all over.
L:- You can’t expect someone to just completely walk away.
REPORTER:- What makes L’s case so significant is that even though she was never married to C, she boldly pursued a slice of his estimated $4.4 million fortune in the Courts.
L:- C probably feels he did more than his bit for me, but I also feel the same. I just think it has to be a fair deal, whatever that deal is, and sometimes it has to be a Judge that decides what is fair.
REPORTER:- L told the Judge she had been C’s homemaker and companion, that he’d encouraged her to give up her $32,000 a year cosmetics career to care for him and that she catered for his multitude of friends and business associates. In the end L won. The Judge awarded her $450,000, one of the largest payouts to a de facto partner in Australian legal history.
L:- I think I earnt that much money, in the time, always wall-to-wall people and always big groups in the house, and I really didn’t get any help. Very rarely did the bottles and ashtrays even get put out before he went to bed.
REPORTER:- We caught up with C late last week as he returned from an overseas trip.
“C, were you surprised that L was awarded $450,000?”
C:- No comment.
REPORTER:- “L says that she earnt that money cooking for you, cleaning for you, catering for your parties. Do you believe she deserved the money?”
C:- “No comment.”
REPORTER:- The relationship began in 1988 when the wealthy businessman wooed L. They travelled the world at his expense and designed this home in the upper class suburb of Walkerville, but when the love died L found herself at almost 54 years old and struggling to regain her position in the work force.
L:- For the first time in my live (sic) I had to go on the dole and that’s probably pretty difficult. The man who I went to see said I was a clean-skin, that I’d never been in before.
REPORTER:- L left the relationship with this car, this unit and a cheque for $5,000, tokens which she claimed were simply not enough to tide her through her twilight years.
L:- Had I been much younger, I would have walked away, but the realisation hit me when I couldn’t get the jobs that I wanted, that I really had to continue with it.
REPORTER:- What does the money mean for your future?
L:- Just means that I can have a retirement without being absolutely on the breadline.
CON TRAIANOS:- She was taking a risk, it may well have been that the Court decided that what was fair and just was what she had already come out of this eight year relationship with.
REPORTER:- Close to 5% of all Australian couples are now de facto and L’s lawyer Con Traianos says the Judge’s award in her case sets a precedent.
CON TRAIANOS:- No two de facto relationships are exactly the same. No two marriages are exactly the same. There are different sacrifices. There are different contributions in each of those relationships, but at least it gives some sort of yardstick.
REPORTER:- The Judge said both L and C sought to blame each other for the end of their relationship. For his part, Mr C told the Court that the problem was that there was no intimacy and passion left.
REPORTER:- “What this case shows, doesn’t it C, is that you can’t just leave someone after eight years and expect them to walk away with very little? C?”
C:- “No comment.”
L:- I always felt I would win because if you tell it as it is you have a good chance and I think if you have been there that long, and I was that old and I wasn’t able to get the jobs that I really needed to survive, I felt I had a very good chance of winning.
REPORTER:- Some people would say this woman was never married to her partner, she had no real commitment, why should she be entitled to any money?
L:- I could have married him. The end result would have been a much easier separation. Had I been after C’s money, I would have married him in that first year, but I wasn’t after the money.
REPORTER:- It’s been nearly five years since L and C separated and now at 58 L says one thing’s for certain, that she won’t ever move in with another man.
L:- You can’t go through the trauma too many times in your life, and put yourself back together. I’m not bitter and twisted, but I will be very careful, that’s all.
MIKE MUNRO:- That report from Sonya Madigan.
The words of the edition were accompanied by pictures, and the Court has had the opportunity to view a video of the edition.
Important findings made by the Judge
I turn now to the important findings made by the Judge.
The Judge made the point that although there were slight variations in the content of the promotions neither party sought to distinguish one from the other, nor had the plaintiff sought separate findings or assessments of damages in respect of each separate promotional broadcast, but had instead invited the Court to regard the totality of promotional broadcasts in any one area as effectively a single publication albeit, because of their number, a pervasive one.
The Judge said that he was not prepared to assume that viewers of the relevant television channel necessarily saw all of the promotions and the edition and he proceeded on the basis that some viewers may have seen only the edition, some only one promotion, some may have seen several promotions, with or without the edition, and, plainly, some saw none of them.
As there is no appeal with respect to the Judge’s conclusions concerning the interview, there is no need for me to discuss those conclusions at any length. However, the Judge did consider the meaning of the expression “to treat somebody like a doormat” in the context of the interview. He considered that its popular usage was well understood and that it was reflected in the definition in the Oxford English Dictionary (vol 4, 2nd ed, 1991) at page 958: “Applied to a person upon whom people ‘wipe their boots’”. The Judge also referred to the definition in the Shorter Oxford English Dictionary (vol 1, 4th ed, 1993), where the word is defined as meaning, figuratively, “a passive, subservient person”. In the Macquarie Dictionary (3rd ed, 1997) the word is accorded a stronger colloquial meaning: “an uncomplaining person who meekly accepts ill-treatment or bullying” and in the Collins English Dictionary and Thesaurus (1993) it is said to have an “informal” meaning of “a person who offers little resistance to ill-treatment”. The Judge found that the first defendant’s statement in the interview constituted an assertion that the plaintiff treated her like a doormat in not offering to properly compensate her after terminating their relationship and that, on its face, that statement was defamatory.
In relation to the promotions, the Judge found that the natural and ordinary meaning of the promotions was that the plaintiff treated the first defendant “like a doormat” and that that in turn gave rise to the natural and ordinary meaning that during the relationship the plaintiff treated the first defendant poorly and took advantage of her compliant nature. The Judge was satisfied that on its face that statement was defamatory. The Judge rejected the plaintiff’s submission that a further meaning arose in relation to the promotions; namely, that from a position of affluence the plaintiff treated his former partner unjustly. That conclusion of the Judge is not challenged on the appeal.
As to the edition, the plaintiff alleged the following in paragraph 42 of its Amended Statement of Claim:
42 In the natural and ordinary meaning, the words and images of the broadcast meant and were understood to mean that:
42.1 the plaintiff treated the first defendant like a doormat;
42.2 the plaintiff terminated his relationship of eight years with the first defendant and ejected her from their home with virtually nothing;
42.3 the plaintiff treated the first defendant poorly in the relationship requiring her to keep home and clean up after him with virtually no help;
42.4 the plaintiff, deservedly, got his comeuppance.
The Judge found that the first meaning arose; namely, the meaning in paragraph 42.1, and that in the context of the edition, that conveyed that both during and after the relationship the plaintiff treated the first defendant poorly and took advantage of her compliant nature. He found that that meaning was defamatory. The Judge then considered whether the meanings alleged in paragraphs 42.2 to 42.4 inclusive arose. He found that they did not, having regard to the edition as a whole.
The Judge then turned to consider the various defences raised by the defendants. In this context I note that after the plaintiff’s evidence in chief was completed, the defendants sought to amend their pleadings to raise a plea of justification. After full argument, the Judge refused the application and the defence of justification therefore did not arise for his consideration.
I turn now to consider the Judge’s findings with respect to the defence of fair comment on a matter of public interest.
The Judge made findings in relation to two elements of the defence of fair comment which he said applied to each of the interview, the promotions and the edition.
The Judge first considered whether the statement that the plaintiff treated the first defendant “like a doormat” was an expression of opinion as opposed to a statement of fact. The Judge said that he had some reservations about that issue, but ultimately he reached the conclusion that the words were an expression of an opinion based upon other facts alleged in each publication. The Judge then considered whether the comment was a comment on a matter of public interest. He accepted the defendants’ argument that it was because it related to proceedings concerning the rights of de facto partners to obtain orders for the division of property.
In relation to the interview, the Judge considered whether the facts upon which the comment was said to be based were (as he put it) “truly stated”. The Judge reached the conclusion that he was not satisfied that the facts upon which the defendants relied in their defence of fair comment were other than truly stated, and that the comment was, on its face, fair. He was not satisfied that there was any malice on the part of the first defendant. Accordingly, he held that the defence of fair comment was made out in relation to the interview.
In relation to the promotions, and for the same reasons he gave in the context of the interview, the Judge was satisfied that the statement that the plaintiff treated the first defendant “like a doormat” was a comment as distinct from a statement of fact, and that the comment was on a matter of public interest. In determining whether the facts upon which the comment was said to be based were true, the Judge considered four statements made in the promotions. The Judge said that he was satisfied that the case was a “significant” one and that the first defendant was “awarded nearly half a million dollars from her de facto”. He was also satisfied that the statement “this millionaire gave her the boot” was truly stated. However, the Judge said that he was not satisfied that the statement “she did everything for him” was truthful. The Judge stated:
I have found that, in connection with entertaining and hospitality, the plaintiff expected that L would carry out practically all the associated work and that she did this, but that falls a long way short of the statement that “she did everything for him”. On the bases of primary judgment and what was put before me, I am simply not satisfied that that is a true statement; indeed, it flies in the face of findings made in the judgment. It is plain on any account that the plaintiff did many things for L, as well, and the words in question present an inaccurate and untrue picture. In its terms it is directly connected to the “doormat” reference.
For reasons which I do not need to detail, the Judge said that he was not disposed to have regard to any facts alleged by the defendants to have been notorious at the time of the broadcasting of the promotions. The Judge said that he found one of the facts upon which the comment was said to be based was not truly stated, and that he was not persuaded that the comment was one based on an opinion a fair-minded person could honestly hold.
In relation to the edition, for the same reasons as he gave in relation to the interview, the Judge was satisfied that the statement was a comment and was on a matter of public interest. In considering whether the facts were truly stated, the Judge identified a number of factual matters. As I understand it, the Judge found that the various facts upon which the comment was said to be based were true, although it must be said that that is not as clear as it might be. However, he rejected the defence of fair comment on the basis that he found that a fair-minded person could not, on the basis of the facts disclosed in the edition, honestly hold the opinion that the plaintiff treated the first defendant “like a doormat”.
The Judge rejected other defences raised by the defendant and found that the plaintiff was entitled to relief in relation to the defamatory statements in the promotions and the edition.
The Judge then turned to consider the question of damages.
The Judge said that he was called upon to consider the quantum of compensatory damages and the question whether exemplary damages should be awarded. The Judge declined to make a distinct award for aggravated damages. He said that aggravated damages form an inseparable part of any compensatory award and any aggravation should simply be reflected in the amount of that award. Liability for aggravated damages may not necessarily be joint.
The Judge considered first the damage to the plaintiff’s reputation. He noted the uncontested evidence as to the plaintiff’s community involvement in South Australia. He noted that although born and raised in New South Wales, the plaintiff had spent most of his adult life and established his business, social and sporting contacts in South Australia. For those reasons, and even allowing for the fact that the extent of the publication was greater in other States, the Judge was persuaded that the damages award for both publications in South Australia should be higher. The Judge noted that the plaintiff led unchallenged evidence, which was supported by some of the witnesses, as to his social and business contacts, particularly in Victoria and New South Wales, to a lesser extent in Queensland and the Northern Territory and, to a limited extent, in Western Australia.
The Judge noted that, subject to one exception, the plaintiff did not call any witness to speak of any lowering of his reputational standing in their eyes or those of others. The one exception was the plaintiff’s stepdaughter, W.
The Judge noted that there was some direct evidence of loss of reputation, albeit for a limited period and tempered by W’s anger over not having previously been told anything about the first defendant. The Judge noted that otherwise the witnesses who were called protested in the strongest possible terms about the accuracy and the manner in which the plaintiff had been portrayed and said that they were, from the beginning, totally uninfluenced by the defamatory words. The Judge noted that, even so, direct proof of such a loss was not required and there was a presumption that there will be a measure of what the Judge called “reputational damage”.
The Judge said that the plaintiff’s more substantive complaint about the publications was that they injured his feelings and caused him considerable emotional and physical distress, which had continued to the time of trial. The Judge made a number of findings with respect to that claim. I will not detail all of those findings. It is sufficient at this point to state the Judge’s conclusions which were in the following terms:
Rather, it seems to me that there are two separate matters (the defamatory words and the publicity per se) which have injured the plaintiff’s feelings, perhaps in different ways and at different levels and times, and caused him hurt, embarrassment, emotional distress, loss of confidence and a measure of social withdrawal – albeit not the level asserted by him – and there are then his reduced business involvement and, most significantly, his medical conditions, which have, as I find it, affected his confidence, sense of wellbeing, no doubt his level of social activity and, in the case of the illnesses, his general health.
I am not, therefore, prepared to find that the defamatory words have caused, as he would contend, the totality or aggregation of his complaints. Doing the best I can, I will assess damages on the footing that they have nevertheless caused him a measure of each of those detriments.
The Judge made a finding that the extent of the publication was wide and that the audiences for the respective capital cities (with the exception of Darwin) were of the following order:
Sydney 597,000
Melbourne 608,000
Brisbane 447,000
Adelaide 160,000
Perth 132,000
The Judge then turned to consider the gravity of the defamatory imputations. He said that whilst he had found that both the promotions and the edition portrayed the plaintiff as having treated the first defendant poorly by taking advantage of her uncomplaining nature, he was also mindful of the context in which each publication occurred; namely, following the breakdown of a reasonably lengthy relationship and the outcome of contested litigation arising out of it in which the first defendant had been the successful party. The Judge said that, in his opinion, ordinary right-thinking members of the community are alert to the fact that in such circumstances the persons involved will frequently resort to intemperate, extravagant and even unjustifiable claims about each other. Such members of the community will not always accept at face value everything they hear in such a context, whether before or after litigation, and are likely to treat it with a measure of reserve. For those reasons, the Judge said that he was not persuaded that any of the defamatory statements were particularly grave, nor were they inherently damaging to the reputation of the plaintiff as they might have been had they, for example, been attributed to a third party.
The Judge considered matters of aggravation put forward by the plaintiff and matters of mitigation put forward by the defendants.
As to matters of aggravation, the Judge referred to the warnings given to the defendants about the content of the promotions prior to the edition going to air. The Judge said that he was satisfied that the conduct of the defendants TCN Channel Nine, General Television, Queensland Television and Territory Television aggravated the damages. He said that it had not been shown that the warning was brought to the attention of the remaining defendants. The Judge referred to the fact that no apology was tendered by the defendants, although he noted that none was sought. The Judge said that he was not persuaded that the lack of an apology was a matter which aggravated the damages in the circumstances of the case. The Judge referred to the plaintiff’s submission that the conduct of the litigation by the defendants was a relevant matter in terms of the aggravation of damages. He referred to the fact that at trial the defendants had sought to plead the defence of justification and that there was some delay in the progress of the trial until that issue was finally determined against them. The Judge said that he would take account of that attempt but only in a limited way because the issue was raised and then determined within a matter of days. The Judge said he would also take some account of the fact that the defendants had failed to respond fully to the notice to admit, although they did later concede many matters. The Judge declined to find that the litigation had been conducted contemptuously by the defendants, nor was he prepared to find that it had been conducted improperly or in bad faith, or that the cross-examination of the plaintiff was other than appropriate. The Judge said that on the one hand he would take account of the fact that the defendants were less than forthcoming in the matter of discovery, although on the other hand they had cooperated with the plaintiff’s efforts to bring the matter on for hearing at an earlier stage, which was to their credit. The Judge considered the plaintiff’s submissions that the defendants’ actions in publishing the libels were malicious. The Judge rejected the matters put forward by the plaintiff in support of that submission.
As to matters of mitigation, the Judge noted that the defendants successfully defended a number of the alleged imputations. He noted that the plaintiff expressed certain views in his evidence and, through his counsel, cross-examined the first defendant in such a way as to suggest certain matters. The Judge said that properly admitted evidence may be taken into account, if it is appropriate, in mitigation of damages. He referred to Pamplin v Express Newspapers [1988] 1 WLR 116 per Neill LJ at 120 and Gumina v Williams (No 2) (1990) 3 WAR 351 per Seaman J at 367, which discuss when a court will consider evidence relevant to the plaintiff’s reputation on the topic of the mitigation of damages. The Judge noted that such evidence is sometimes referred to as evidence of “partial justification” although it may not be pleaded in that way or led as part of a justification plea. The Judge found that whilst the plaintiff was, in a number of respects, generous to the first defendant, he was nevertheless in other respects “chauvinistic” towards her. He referred to the plaintiff’s evidence describing the first defendant’s contribution to the household as “what women do”, his cross-examination of the first defendant directed to the proposition that his payments of her airfares on their frequent trips interstate and overseas were acts of generosity on his part, his attitude to the generosity of her $200 allowance, his being seemingly oblivious to the nature and extent of her contributions to the running of the household and his dismissive attitude, apparently then and even at trial, as to what the Judge was satisfied was her condition of viral pneumonia. The Judge said that whilst the defence of fair comment had not been made out, he was satisfied that there was some measure of truth in the first defendant’s reported description of the plaintiff treating her “like a doormat”. The Judge said that he was satisfied that that should be considered by him in mitigation of damage.
The Judge said he had found that both the promotions and the edition were defamatory and were widely published. He said that he did not regard them as carrying the gravity contended by the plaintiff “and, indeed, I do not regard them, in all the circumstances, as very grave at all.” The Judge said that, whilst he was satisfied that the defamatory statements had injured the plaintiff’s feelings, he did not accept his claims that they were the only sources of his embarrassment, loss of confidence and social withdrawal. The Judge said that the sheer impact of the publicity which the decision of Judge Smith, the promotions and the edition brought about, the unfortunate state of the plaintiff’s health and his withdrawal from his former business activities had themselves caused the same or similar symptoms. The Judge said that, nevertheless, to the extent the defamatory material did injure the plaintiff’s feelings, that injury was aggravated by the defendants’ conduct in ignoring his request that the edition not be aired and by certain aspects of the preparation and conduct of the defence case. It was then mitigated in the way he had described.
The Judge decided to make similar monetary awards in relation to both the promotions and the edition. On the one hand, he found that the promotions were likely to have been viewed by more people than the edition. On the other hand, he found that the edition more squarely identified the plaintiff and focussed more closely upon those matters which he had found did not fairly support the comment that he treated the first defendant “like a doormat”. He assessed compensatory damages for the plaintiff in respect of the promotions as follows:
1 In South Australia (Channel 9) $6,000 2 In Western Australia (Swan Television) $1,500 3 In New South Wales (TCN Channel Nine) $5,000 4 In Victoria (General Television) $5,000 5 In Queensland (Queensland Television) $2,000 6 In the Northern Territory (Territory Television) $1,500
He assessed compensatory damages for the plaintiff in respect of the edition in similar amounts.
The Judge considered the plaintiff’s claim for exemplary damages. He referred to the following passage from the reasons for judgment of Menzies J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 143 (case citations omitted):
… I think exemplary damages could have been awarded on the simple ground that it was open to the jury to find that the defendant recklessly and arrogantly attacked the plaintiff's reputation for the purpose of publishing a sensational story to attract the custom of newspaper readers. That conduct, if so found, was malicious, wilful and reprehensible. It was a "contumelious disregard" of the rights of the plaintiff to his reputation. See Whitfeld v De Lauret & Co Ltd.
The Judge said that he was not satisfied that the plaintiff had demonstrated that there was any contumelious disregard of his rights, nor that the defendants “recklessly and arrogantly attacked the plaintiff’s reputation for the purpose of publishing a sensational story to attract the custom of … their viewers”.
The Judge also said that he found that the decision of Judge Smith was a matter of genuine public interest. Whilst the defence of fair comment with respect to the broadcasts was not made out, the extent of exaggeration or hyperbole engaged in was, in the Judge’s view, limited, and might have been avoided had the broadcasters more carefully analysed and used the contents of the first defendant’s interview. He was not persuaded that the failure was one of recklessness or arrogance and, in addition, he found that there was a measure of partial justification. The Judge referred to an email exchange between various defendants and their representatives, and a statement in those emails to the effect that if the plaintiff was not overseas “can we bang him somewhere”. The Judge said that there was no evidence before him as to what was meant by the expression “bang” but he took it to mean confront or surprise. The Judge said that whilst that might be distasteful conduct, he was not persuaded that in the context of what else occurred in those email transmissions, there was any basis for a finding that the proposal or the conduct which followed it demonstrated a contumelious disregard of the plaintiff’s rights. Indeed, the Judge said that the interviewer was, herself, attempting to persuade the plaintiff to talk to her.
For those reasons, the Judge declined to make an award for exemplary damages.
Issues on the appeal
1. Defamatory Meanings
The plaintiff challenged the Judge’s findings as to the meanings which arose from the promotions and the edition. First, he submitted that, as far as the reference to treating women “like a doormat” was concerned, the meaning found by the Judge was not sufficiently grave or damaging to the plaintiff. Secondly, he submitted that the Judge erred in not finding that the meanings alleged in paragraphs 42.2 to 42.4 inclusive were conveyed by the edition.
I start with the meaning of the reference in the promotions and the edition to treating women “like a doormat”. As I have indicated, in relation to the promotions, the Judge found that this reference conveyed the meaning that during the relationship the plaintiff treated the first defendant poorly and took advantage of her compliant nature. Also as indicated previously, in relation to the edition, the Judge found that this reference conveyed the meaning that both during and after the relationship the plaintiff treated the first defendant poorly and took advantage of her compliant nature.
The test to be applied in determining the meaning which arises from an offending statement is clear. The intention of the publisher is irrelevant (Lewis v Daily Telegraph Ltd [1963] 1 QB 340 per Holroyd Pearce LJ at 374). In terms of the characteristics to be attributed to the viewer, the question is what would ordinary reasonable people understand by the matter complained of? There are two passages from the authorities which sufficiently state the relevant principles for the purposes of this appeal. In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mason J (as he then was) said (at 301):
A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.
In Farquhar v Bottom & Anor [1980] 2 NSWLR 380 Hunt J said (at 386 and omitting case citations):
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldy [sic] affairs. … It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer.
...
One assumes that the reader of a book would read it with more care than he would a newspaper. In both the “newspaper” and in other cases, there is also a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.
(See also Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527 per Doyle CJ at 540 – 541).
The Court will have regard to the matter itself and the context in which it appears. There is no question of a true innuendo in this case so that the possibility of having regard to any special knowledge does not arise. In addition to having regard to the context in which the words appear, the mode of communication is relevant. In the case of a communication on television, the ordinary reasonable viewer will have less time to consider the details of what is said and the matter will be more a matter of first impression (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt CJ at CL at 165 – 166).
The plaintiff submitted that there was a principle that the Judge was required to find the most damaging meaning conveyed to the ordinary reasonable viewer by the offending words. He referred to the following passage from the speech of Lord Reid in Lewis v Daily Telegraph Ltd [1964] AC 234 at 259:
Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.
The plaintiff did not identify with precision the meaning he said arose from the reference to the fact that he treated the first defendant “like a doormat” either in his pleadings or in his submissions on appeal. However, he submitted it was more damaging than the meanings identified by the Judge and he submitted that it was closer to the meaning in the Macquarie Dictionary (3rd ed, 1997) in that it suggested ill-treatment or bullying.
The defendant submitted that there was no principle that the Judge was required to find the most damaging meaning and that the meanings found by the Judge were the correct meanings.
The passage from Lord Reid’s speech in Lewis v Daily Telegraph Ltd (supra) and the identification of the most damaging meaning has been referred to in a number of authorities (see, eg, Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 (“Chakravarti”) per Brennan CJ and McHugh J; Corse v Robinson (unreported, Supreme Court of Western Australia, Malcolm CJ, Owen and Steytler JJ, 8 December 1997); Nationwide News Pty Ltd & Ors v Abboud & Anor (unreported, Supreme Court of Western Australia, Malcolm CJ, Pidgeon and Franklyn JJ, 12 September 1996); John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12 per Crispin P, Gray and Marshall JJ at [14]; Ronci v Nationwide News Pty Ltd & Anor (unreported, Supreme Court of Western Australia, Steytler J, 21 June 1996) at 13).
However, I think the identification of the most damaging meaning is only relevant where the defendant alleges that the words are not capable of bearing the meanings alleged by the plaintiff and a Judge sitting with a jury is asked to rule that the meanings or a particular meaning should not go to the jury. The most damaging meaning might also be relevant on an application by the defendant to strike out a meaning pleaded by the plaintiff. In other words, the most damaging meaning is a relevant question when the Judge is asked to consider the limits of the range of the possible meanings that might arise from the words. The finder of fact, whether it be a jury or a Judge sitting alone, is not required to select the most damaging meaning, but the natural and ordinary meaning which the words bear, having regard to the words themselves, the context in which they appear, the mode of communication and any other relevant matters (Keays v Murdoch Magazines (UK) Ltd & Anor [1991] 1 WLR 1184; Mapp v News Group Newspapers Ltd [1998] QB 520; McCann v Scottish Media Newspapers Ltd (2000) SLR 256 OH).
In this case, this Court is in as good a position as the Judge to determine the meaning conveyed by the offending words to the ordinary reasonable reader, although the views of the Judge must be given due weight. The metaphor “to treat someone like a doormat” is capable of various shades of meaning. In my opinion, the Judge has understated the meaning of the words. I think that, in context, the offending words convey not only poor treatment and taking advantage of a person’s compliant nature, but also overbearing and arrogant behaviour. I would not go so far as to find that the meaning included an assertion that the plaintiff was a bully. Accordingly, I find that the meaning conveyed by the words in terms of the plaintiff’s conduct during the relationship in the case of the promotions, and during and after the relationship in the case of the edition, was that he was arrogant and overbearing towards the first defendant, treated her poorly and took advantage of her compliant nature.
I turn now to consider the plaintiff’s challenge to the Judge’s findings that the meanings alleged in paragraphs 42.2 to 42.4 did not arise in relation to the edition.
As to the meaning alleged in paragraph 42.2, the plaintiff submitted that the Judge should have found that the edition conveyed the meaning that the plaintiff terminated his relationship of eight years with the first defendant and ejected her from their home with virtually nothing. One can put to one side the termination of the relationship which was not in dispute and which is in any event not defamatory. The question is whether the edition conveyed the meaning that the first defendant had been ejected with virtually nothing. I agree with the Judge that there were things to be said on either side of the argument. On the one hand, the edition makes clear that the first defendant left the relationship with a unit, a motor vehicle and the sum of $5,000 given to her by the plaintiff and which the ordinary reasonable viewer would not regard as “virtually nothing”. On the other hand, the edition refers to these as “tokens” and the fact that the plaintiff expected the first defendant to walk away with “very little”. In the end I am not persuaded that the Judge was wrong. The thrust of the edition on this topic was that the first defendant had not received sufficient recompense having regard to what she had done during the relationship and what she had given up as a result of the relationship.
As to the meaning alleged in paragraph 42.3, namely, that the plaintiff treated the first defendant poorly in the relationship, requiring her to keep house and clean up after him with virtually no help, the plaintiff relied (in addition to the whole context of the edition) on the following passages in the edition:
REPORTER:- L told the Judge she had been C’s homemaker and companion, that he’d encouraged her to give up her $32,000 a year cosmetics career to care for him and that she catered for his multitude of friends and business associates.
…
L:- I think I earnt that much money, in the time, always wall-to-wall people and always big groups in the house, and I really didn’t get any help. Very rarely did the bottles and ashtrays even get put out before he went to bed.
…
REPORTER:- “L says that she earnt that money cooking for you, cleaning for you, catering for your parties. Do you believe she deserved the money?”
I do not think the meaning alleged in paragraph 42.3 arose from the words used in the edition. The edition as a whole did not convey the meaning that the first defendant received no help of any kind, and furthermore, leaving aside the reference to treating women “like a doormat”, it did not convey the meaning that the plaintiff had treated the first defendant poorly. The reference to a lack of help was a reference to no help from the plaintiff, and in terms of the plaintiff’s treatment of the first defendant there was reference in the edition to various matters which counterbalanced the suggestion that the plaintiff had treated the first defendant poorly. In that regard the matters identified by the Judge (with which I agree) were as follows:
1The first defendant’s reference to the plaintiff feeling that he did more than “his bit”.
2The reference in the edition to the benefits conferred by the plaintiff by way of travel and residing in an expensive house.
3The acknowledgment by the first defendant’s solicitor in the edition that the first defendant’s claim might have failed and his statement that there are different sacrifices by and contributions to a relationship by the parties in it.
4The fact that in the action before Judge Smith each party sought to blame the other for the failure of the relationship.
As to the meaning alleged in paragraph 42.4, namely, that the plaintiff deservedly got his comeuppance, the Judge found that this meaning did not arise from the edition, and it is enough for me to say that I agree with him.
The promotions and the edition each conveyed the meaning that the plaintiff treated the first defendant “like a doormat” and that in turn conveyed the meaning that the plaintiff was arrogant and overbearing towards the first defendant, treated her poorly and took advantage of her compliant nature.
I agree with the Judge that the edition did not convey the meanings alleged in paragraphs 42.2, 42.3 and 42.4 of the plaintiff’s Amended Statement of Claim.
2. Fair comment on a matter of public interest
The Judge rejected the defence of fair comment on a matter of public interest in relation to the promotions and in relation to the edition. The defendants by their cross-appeal challenge those conclusions. The plaintiff filed and served a notice of alternative contentions in relation to the cross-appeal and he asked this Court to uphold the Judge’s decision on grounds not relied upon by the Judge.
In order to establish the defence of fair comment on a matter of public interest, a defendant must establish the following matters:
1.The offending words must constitute a comment and not a statement of fact. In determining the question whether a statement is a comment or a statement of fact, the context in which the statement appears is important. A statement may be a comment where the facts upon which it is based are set out in the publication or are notorious. In another context, where the facts upon which the statement is based are not set out or are not notorious, the statement may be construed as implying assertions of fact and therefore be construed as a statement of fact.
In Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 King CJ said (at 192, case citations omitted):
A statement can be regarded as comment as distinct from allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts. To amount to comment there must be "a sufficient substratum of fact stated or indicated in the words which are the subject matter of the action": Kemsley v. Foot, per Lord Porter at p. 356. Where the facts upon which the comment is made are in the public arena and are well known or easily ascertainable, it is not necessary that those facts be stated, but is sufficient that they be clearly indicated. Such clearly indicated public facts "are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject matter upon which the comment is founded": Kemsley v. Foot, per Lord Porter at p. 356. But if the facts are stated in the defamatory publication, they must be stated correctly: Kemsley v. Foot, per Lord Oaksey at p. 361.
2.The comment must be on a matter of public interest. There appears to be a debate in the authorities as to how widely the concept of public interest should be construed. On the one hand, there is authority to suggest that the public interest extends to any matter which may affect people at large (London Artists Ltd v Littler [1969] 2 QB 375 per Lord Denning at 391). On the other hand, there is authority that the public interest extends only to the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion (Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 per Dawson, McHugh and Gummow JJ at 215).
3.The comment must be fair. There are two aspects to the fairness of the comment. First, the facts upon which the comment is based must be true or privileged. Secondly, the comment must be one which could have been made honestly by a fair-minded person. In Pryke v Advertiser Newspapers Ltd (supra), King CJ said (at 191):
It protects even defamatory reflections on the conduct and character of public figures and those engaged in public activities provided that the views expressed are views which might be held by a fair-minded person. A great deal of latitude is permitted to those who engage in criticism of the conduct and character of persons in the public arena. The criticism must be such as might be made by a fair-minded person, but the law makes considerable allowance for the prejudice and bias to be found even in generally fair-minded persons. The doctrine of fair comment therefore provides extensive protection to citizens who express opinions, even unfounded opinions, on matters of public interest and to the newspapers and others who disseminate those opinions.
(See also Rocca v Manhire (1992) 57 SASR 224 per King CJ at 229 – 230; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 per Besanko J at [324] – [330]).
It is important to remember that the test is not whether the Court thinks the comment is fair, but rather whether the comment is one which could have been made honestly by a fair-minded person (Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 per Cox J).
I turn now to consider the challenge to the Judge’s conclusions in relation to the defence of fair comment.
I start with the promotions. The offending words are “you just can’t treat women like a doormat” and, as I have already said, these words convey the meaning that during the relationship (and after, in the case of the edition) the plaintiff was arrogant and overbearing towards the first defendant, treated her poorly and took advantage of her compliant nature. In context, is this a comment or a statement of fact? The Judge had “some reservations” about this question, but ultimately he satisfied himself that the offending words were expressing an opinion, and therefore were comment. With respect to the Judge, I think he was wrong. To my mind, there is not a sufficient substratum of fact stated or indicated in the promotions to make it clear to the viewer that the statement “you just can’t treat women like a doormat” is a comment based on facts. There are no notorious facts to be considered. Before the Judge, the defendants did submit that there were notorious facts by reason of Judge Smith’s reasons for judgment and the subsequent reporting of it. However, the Judge rejected the submission that these were notorious facts and his conclusion in that regard is not challenged on appeal. The question is whether the facts upon which the alleged comment is based are stated in the promotions or indicated with sufficient clarity to make it clear that it is a comment on those facts. As far as the first two versions of the promotion are concerned, the only apparent fact upon which the alleged comment might be based is the statement “she did everything for him”. That statement is not even made in the third version of the promotion although, as I have already said, neither party here or below sought to distinguish between the three versions of the promotions. Bearing in mind the meaning I have found was conveyed by the statement “you can’t treat women like a doormat”, I do not think the one statement “she did virtually everything for him” is a sufficient statement of facts for the ordinary reasonable viewer to conclude that the statement “you can’t treat women like a doormat” is a comment as distinct from a statement of fact. Read in context the statement implies assertions of fact and therefore is not comment.
It follows therefore that in relation to the promotions, the defence of fair comment fails at the outset. For the sake of completeness, and because the other elements were argued before us, I will consider the other elements on the assumption that the statement is a comment.
The defendants must show that the comment was on a matter of public interest. The Judge found that this element was satisfied, the public interest he identified being the public interest in proceedings concerning the rights of de facto partners to obtain orders for the division of property. I agree that the effect of the De Facto Relationships Act 1996 and the fate of a claim under it are matters of public interest. However, by itself a statement by one individual about her relationship with another individual in circumstances where neither are public figures is not on the face of it a matter of public interest. The promotions do refer to a “case” and an “award” but it might be said the link between the promotions and the De Facto Relationships Act 1996 and the fate of a claim under it is somewhat tenuous. However, the plaintiff does not by his notice of alternative contentions challenge the Judge’s conclusion that the comment in the promotions was on a matter of public interest and accordingly I would not interfere with that conclusion.
The Judge also found that one of the facts upon which the comment was based, namely, “she did everything for him” was not truly stated, and the defendants’ challenge by way of cross-appeal related to that conclusion. Grounds 3 and 4 of the cross-appeal are in the following terms:
3.The learned trial Judge erred in finding (Judgment paragraph 177(3)) that the statement “She did everything for him” was not a true statement and the learned trial Judge ought to have found that in the context of the publications the words “She did everything for him” insofar as they were a statement of fact were true in that they meant that the first defendant devoted herself fully to the plaintiff’s domestic care and practically carried out all the duties associated with such domestic care in the context of their relationship. Insofar as such words constituted comment the learned trial Judge ought to have found that it was fair comment.
4.The learned trial Judge erred (Judgment paragraph 182) in holding that he was not persuaded that the words “She did everything for him” were comment based on an opinion a fair minded person could honestly hold and the learned trial Judge ought to have held that insofar as such words constituted comment they constituted an opinion a fair minded person could honestly hold based upon the facts otherwise stated in the publication.
The Judge found that on the basis of the judgment of Judge Smith and the evidence before him, the statement “she did everything for him” was inaccurate and untrue. It was contrary to the findings made by Judge Smith and it was plain that, on any account, the plaintiff did many things for the first defendant. I am not persuaded that those conclusions by the Judge are wrong.
The Judge went on to say that he was not persuaded that the statement “she did everything for him” was a comment based on an opinion a fair-minded person could honestly hold. I would not characterise the statement as a comment, bearing in mind the absence of other facts in the promotions upon which it might be said that the statement was based. In any event, to characterise the statement as a comment does not assist the defendants’ submission because it removes the key and, in my view, only, alleged statement from a consideration of whether the statement “you just can’t treat women like a doormat” is properly characterised as a comment or a statement of fact.
The defendants’ challenge to the Judge’s conclusion that they had not established the defence of fair comment in relation to the promotions must be rejected.
I turn now to consider their challenge to the Judge’s rejection of the defence of fair comment in relation to the edition.
The Judge found that the statement “you just can’t treat women like a doormat” was a comment in the context of the edition. I agree with the Judge because I think that in the edition, unlike the promotions, the facts upon which the statement is based are stated or indicated with sufficient clarity to make it clear to the ordinary reasonable viewer that it is a comment on those facts.
The Judge concluded that it was a comment on a matter of public interest for the same reasons he gave in relation to the promotions. By his notice of alternative contentions, the plaintiff challenged that conclusion. However, as I have said, I think the effect of the De Facto Relationships Act 1996 and the fate of a claim under that Act is a matter of public interest and, looking at the edition as a whole, it is a publication about those matters. The Judge was right to conclude that the statement in the edition was on a matter of public interest.
As I have said, although it is not as clear as it might be, the Judge appears to have found that the facts upon which the comment was based were truly stated. By his notice of alternative contentions the plaintiff challenged that conclusion and he submitted that the following facts were not truly stated:
1.The parties had enjoyed a relationship involving “eight years of de facto bliss”.
2. The first defendant had left the relationship with “token” assets.
3.The plaintiff expected the first defendant to walk away with “very little”.
4.The assertion that there were “always wall-to-wall people” and “always big groups in the house” and that the first defendant “really didn’t get any help”.
5.The failure to say that the car, unit and cheque for $5,000 were provided by the plaintiff.
6.The assertion that the award means that the first defendant can have a retirement “without being absolutely on the breadline”.
The plaintiff submitted that the Judge erred in finding that each of the above facts was truly stated. It is not strictly necessary for me to deal with this submission because I have reached the conclusion that the Judge was right to conclude that on the basis of the facts disclosed in the edition a fair-minded person could not honestly make the comment that the plaintiff treated the first defendant like a doormat. However, I am not persuaded that the Judge was wrong to conclude that the facts were truly stated. He did so by reference to evidence upon which it was open to him to rely, and he did not err in concluding that what at first sight appeared to be exaggerated statements were not when considered in the context of the edition as a whole.
As I have said, the Judge rejected the defence of fair comment in relation to the edition because he was not satisfied that a fair-minded person could honestly make the comment that the plaintiff treated the first defendant like a doormat. The defendants challenge this conclusion in their cross-appeal and the grounds of challenge are as follows:
5.Having found that the facts contained in the published edition were true (Judgment paragraphs 187, 188, 191) the learned trial Judge erred in his consideration of whether a fair minded person could, on the basis of the facts disclosed in the edition, honestly hold the opinion that the plaintiff treated the first defendant like a doormat (Judgment paragraphs 194, 195 and 196).
6.The learned trial Judge ought to have considered whether an honest person, holding a strong view, holding perhaps an obstinate view, holding perhaps a prejudiced view, may be capable of writing such words.
7.The learned trial Judge has erred in his consideration of whether an honest person could hold the views expressed in determining the question by reference to whether or not full disclosure of the terms of the previous judgment of Judge Smith was made in the broadcast. That question can only be relevant to whether the defendants did in fact genuinely believe what they were publishing not whether the publication was in fact fair comment.
8.The learned trial Judge, given the findings he had made as to the truth of the facts set out in the publication ought to have found that the comment constituted fair comment.
I do not think that based on the facts stated in the edition a fair-minded person could honestly make the comment that the plaintiff treated the first defendant “like a doormat” in the sense that during and after the relationship he was overbearing and arrogant towards her, treated her poorly and took advantage of her compliant nature. I note that, as with the promotions, the Judge rejected the submission that there were notorious facts and that conclusion is not challenged on appeal. I must take into account the fact that considerable allowance is made for the prejudice and bias found even in generally fair-minded persons. The comment might be protected insofar as it relates to the plaintiff’s conduct on and after the termination of the relationship. It may even be said that based on the facts stated in the edition an adverse comment about the plaintiff’s contribution was fair comment as that concept is understood. However, I cannot see how the comment, having regard to the meaning it conveys, could be honestly made by a fair-minded person insofar as it relates to the plaintiff’s conduct during the relationship.
For the reasons stated above, the defendants’ challenge to the Judge’s conclusion that they had not established the defence of fair comment in relation to the edition must be rejected.
3. Damages
The plaintiff submitted that the Judge erred in his approach to damages in a number of respects. I will deal with each in turn.
First, it is submitted that the Judge erred in assessing damages by reference to a meaning different from the meaning he found earlier in his reasons. The Judge earlier found that the promotions and the edition conveyed the meaning that during (and after in the case of the edition) the relationship, the plaintiff treated the first defendant poorly and took advantage of her compliant nature, whereas when he came to assess damages the Judge referred to the meaning as that the plaintiff had treated the first defendant poorly by taking advantage of her uncomplaining nature. It is not clear to me whether this was a slip by the Judge and whether he considered the meanings to be the same. In any event, it does not matter because I have found that the Judge should have found a more serious and damaging meaning and damages must be assessed by reference to that meaning. To the extent that I have found that a more serious and damaging meaning arises, I uphold the plaintiff’s challenge to the Judge’s finding in the context of the assessment of damages that the defamatory meaning was not “particularly grave” or “as very grave at all”.
The plaintiff challenged the Judge’s approach of considering the gravity of the meaning by having regard to the context and, in particular, by having regard to the fact that the offending words came from the other party to a lengthy relationship which had broken down, rather than from a third party. The Judge said that, in that context, the ordinary reasonable viewer would not accept all statements at face value. I do not think the Judge erred as a matter of principle in taking this approach, although it is not a matter on which I place a great deal of weight when I come to assess damages.
The plaintiff submitted that the Judge erred in his approach to the assessment of damages for loss of reputation by effectively relying on the absence of evidence of loss of reputation. The legal principle is that some damage to reputation is presumed to flow from defamatory material. The extent of the damage presumed to flow will depend on the circumstances of the case (Coyne v Citizen Finance Ltd (1991) 172 CLR 211 per Mason CJ and Deane J at 216). In addition to this presumption, the plaintiff may lead evidence of loss of reputation to increase the sum awarded. The Judge referred to the principle that direct proof of loss of reputation is not required and there is a presumption that there will be a measure of damage to reputation. It is true that he referred to evidence from witnesses to the effect that they were totally uninfluenced by the defamatory words, but I do not think that it can be inferred from that observation that the Judge lessened the impact of the damage to the plaintiff’s reputation which would otherwise be presumed to arise.
The plaintiff also challenged the Judge’s approach in considering his case in relation to injury to feelings and emotional and physical distress. The challenge was not to any particular finding of fact but rather to his approach to causation. I can find no error in the Judge’s approach. A plaintiff may recover for the grief and annoyance which the defamatory statement has caused him. The onus is on the plaintiff to prove that the alleged grief or annoyance has been caused by the defamatory comments. I think the Judge’s approach was entirely orthodox. He applied the ordinary principles of causation and remoteness of damage and that was the correct approach.
The plaintiff also submitted that the Judge erred in the findings he made as to the matters the plaintiff put forward as matters of aggravation. The Judge said that the warning given by the plaintiff aggravated the damages as far as TCN Channel Nine, General Television, Queensland and Territory Television were concerned. He appears to have overlooked his earlier finding that Channel 9 also received the warning and that that was an aggravating factor against that defendant. The Judge did not err in finding that the absence of an apology did not aggravate the damages. The mere absence of an apology does not necessarily lead to an award of aggravated damages (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44). This is not a case where the failure to tender an apology is part of a course of conduct which lacks good faith or is otherwise improper or unjustifiable (Gillooly, The Law of Defamation in Australia and New Zealand (1998), 289 – 290). The Judge did not err in the weight he placed on the way the defendants conducted the litigation. He was in the best position to judge that matter. He said he would take some account of the defendants’ unsuccessful attempts to plead justification, their failure to respond fully to the notice to admit and some deficiencies in the discovery the defendants gave. There is no error in that approach.
The Judge also found that the promotions and the edition were not published maliciously. The Judge rejected the submission that the intention of the defendant broadcasters in publishing the words was to seek to entertain its viewing public and earn advertising income at the expense and embarrassment of the plaintiff. The Judge found that the judgment of Judge Smith was a significant one that established a precedent and was such as to invite public interest and attention. The Judge found that the defendants acted reasonably in bringing it to the attention of the public and that although the defendant broadcasters clearly had a commercial interest, that of itself was not decisive. I think those findings of the Judge are correct. The plaintiff submitted that the defendant broadcasters knew that the statements made by the first defendant were untrue or were recklessly indifferent as to their truth because Judge Smith did not find that the plaintiff treated the first defendant “like a doormat” or “gave her the boot”. The Judge found that the defendant broadcasters were careless rather than malicious in broadcasting the reference to treating women “like a doormat” and that the reference to the plaintiff giving the first defendant “the boot” was editorial hyperbole, not malicious and in substance true. There is no reason to interfere with those findings of the Judge. The Judge found that Ms Madigan’s conduct on approaching the plaintiff at the Adelaide Airport was not motivated by a desire to embarrass the plaintiff but rather was with a view to exciting him to make a comment. I see no reason to interfere with that finding. The Judge also found that whilst the warning given to the defendant broadcasters (except for Swan Television) and the decision to publish in the face of the warning was a circumstance of aggravation, it was not proof of malice. Nothing was put to this Court which persuades me persuade that that conclusion was wrong.
Accordingly, the Judge was right to reject the submission that the defendants were actuated by malice in publishing the promotions and the edition.
The Judge also found that there was some measure of truth in the first defendant’s description of the plaintiff treating her “like a doormat” and that that was a mitigating factor in terms of the assessment of damages. Later he said that “there was a measure of partial justification”. The plaintiff submitted that it was not open to the Judge to find partial justification in the absence of a plea of justification. He referred to r 78.03 of the Supreme Court Rules 1987 which is in the following terms:
In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence-in-chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless at least seven days before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.
The Judge found that although the plaintiff was in a number of respects generous to the first defendant, he was nevertheless “chauvinistic” towards her in others. He referred to evidence of the plaintiff and/or questions his counsel put to the first defendant to the following effect:
1.His description of the plaintiff’s contribution to the household as “what women do”.
2.His cross-examination of the first defendant suggesting his payment of her airfares on their trips were acts of generosity on his part.
3.His attitude to the “generosity” of her $200 a week allowance.
4.The fact that he was seemingly oblivious to the nature and extent of her contributions to the running of the household and his dismissive attitude, apparently then and even at trial to what the Judge was satisfied was the first defendant’s condition of viral pneumonia.
It is difficult to know to what extent the Judge found that the above matters “justified” the meaning he found because what he said was that there was “some measure of truth” in the first defendant’s description of the plaintiff treating her “like a doormat”.
In my opinion, the Judge was entitled to rely on the evidence he identified. The rule of Court, r 78.03, did not prevent the Judge from relying on those matters. It is true there was no plea of justification in this case and no particulars were given of a number of matters on which the Judge relied. However, a number of matters the Judge relied on were not led by the defendants by way of evidence-in-chief but were the subject of evidence from the plaintiff, or were the subject of cross-examination of the first defendant by the plaintiff. In any event, the Judge is able to give leave under the rule and to the extent that he is to be taken to have done so, there was no error.
At common law, a defendant is able to lead evidence of the plaintiff’s general reputation in mitigation of damages but he is not, subject to the exception in the case of any relevant criminal conviction recorded against the plaintiff, able to lead evidence of specific acts of misconduct. However, there is no difficulty in the Judge relying on evidence relating to the plaintiff’s reputation, or suggesting the partial truth of the offending words, if that evidence is otherwise properly before the Court, for example, by reason of a plea of justification or fair comment (Pamplin v Express Newspapers Ltd (supra); Rantzen v Mirror Group Newspapers Ltd [1994] QB 670). The Judge said that the evidence was evidence he could consider because either the plaintiff led it or it came forward as a result of the plea of fair comment, and I would not interfere with that conclusion.
Although I am of the opinion that the Judge was entitled to have regard to the evidence, I do not think it goes very far in establishing a measure of truth in the description that the plaintiff treated the first defendant “like a doormat”, bearing in mind the meaning which I find arises from that statement. I will not ignore it but I am not inclined to give it much weight.
The plaintiff challenged the Judge’s refusal to award exemplary damages. An award of exemplary damages may be made only if two conditions are satisfied; namely, the defendant’s conduct is of a sufficiently reprehensible kind and the sum awarded by way of compensation is insufficient to adequately punish the defendant for such conduct.
The conduct of the defendant necessary to justify an award of exemplary damages has been described in various ways. In Whitfield v De Lauret & CoLtd (1920) 29 CLR 71, Knox CJ said (at 77):
Exemplary damages are given only in cases of conscious wrongdoing in contumelious disregard of another’s rights.
I also refer to the comments of Menzies J in Uren v John Fairfax & Sons Pty Ltd (supra) which are set out in [56] above.
The plaintiff submitted that the Judge should have awarded exemplary damages, having regard to the warning given to the defendant broadcasters (other than Swan Television) on 15 July 2002, the revenue generated by the promotions and the edition, and the conduct of the broadcasters in approaching the plaintiff at Adelaide airport.
I do not think that those matters, considered individually or collectively, are sufficient to justify an award of exemplary damages. I agree with the Judge that the judgment of Judge Smith was a matter of public interest and that the promotions and the edition were about the judgment. I also agree with the Judge that, other than the reference to treating women “like a doormat”, the edition was not in the nature of a sensational story published to attract custom, although it must be said that the promotions were somewhat sensationalised. Nor do I think the fact that the defendant broadcasters (other than Swan Television) were warned about publication is a particularly significant factor in this context. That must often happen and it was only the reference to treating women like a doormat which has been held to be defamatory. The revenue earned from the edition is a relevant matter, but in the end that revenue was not clearly established.
The conduct of the defendant broadcasters at the Adelaide airport might be conduct that a number of people would consider intrusive and even unfair. The reference in the email to “bang him somewhere” is also suggestive of an aggressive approach. However, I do not think those matters are weighty enough to justify a conclusion that the defendant broadcasters acted in contumelious disregard of the plaintiff’s rights. As the Judge noted, it was not unfair for the defendant broadcasters to seek the plaintiff’s comments.
Accordingly, the Judge was right to reject the claim for exemplary damages.
In my opinion, even based on the meanings the Judge found, the awards of damages were manifestly inadequate. The extent of the publications was wide, the promotions were broadcast by each of the defendant broadcasters on between 30 and 40 occasions and, as I have said, the promotions are somewhat sensationalised. The defendants submitted that the awards made by the Judge were in line with awards made in comparable cases, but I do not think that is established by the cases to which we were referred (Kay v Cunningham & Anor [1995] SASC S5242; Georgeff v SA Telecasters Ltd [1999] SADC 151; Chapman & Ors v Allan & Draper [1992] SASC 460; Butcher v Channel 9 South Australia Pty Ltd [2001] SADC 88; Allen v Johnstone [2004] SADC 56). No clear and precise pattern in terms of awards emerges from those cases. As I have said, it is difficult to know what weight the Judge placed on what he found to be partial justification. Although I will not ignore it, it is not a matter to which I would give much weight.
In my opinion, a larger award is called for, having regard to the matters I have identified and to the more serious and damaging meaning which I have found arose from the words. I think the arrogant and overbearing aspect of the meaning which I have found makes the meaning more serious and damaging particularly insofar as it refers to the plantiff’s conduct during the relationship.
I think that as far as the publications in South Australia are concerned an award of $15,000 in relation to the promotions and $15,000 in relation to the edition are appropriate. The Judge appears to have taken the view that the next State where the injury was the greatest was New South Wales and he appears to have done so on the basis that the plaintiff had more business contacts in that State compared with the other States. I will take a similar approach and I will increase the award against TCN Channel Nine to $7,500 in relation to the promotions and $7,500 in relation to the edition. I will increase the other awards by smaller amounts to reflect the more serious meaning I have found.
I would extend the time for the institution of the appeal and I would set aside the first order made by the Judge and substitute the following order:
1Judgment for the plaintiff against the first, second, third, sixth, seventh, eighth and ninth defendants in the sum of $65,000 divided between them as follows:
1.1as against the first defendant, she will not be liable on her own account for the interview but will be jointly and severally liable with each of the following defendants for their separate publications and in the following amounts.
1.2 as against the second defendant in the sum of 30,000 1.3 as against the third defendant in the sum of 4,000 1.4 as against the sixth defendant in the sum of 15,000 1.5 As against the seventh defendant in the sum of 7,000 1.6 As against the eighth defendant in the sum of 5,000 1.7 As against the ninth defendant in the sum of 4,000 $65,000
The cross-appeal must be dismissed. It will be necessary to hear the parties on the other orders made by the Judge including the orders as to interest and the costs of the trial and on the costs of the appeal and cross-appeal.
ANDERSON J I agree with the orders proposed by Besanko J and with his reasons for those orders.
LAYTON J I have had the opportunity of reading the draft reasons for decision of Besanko J and agree with the orders which his Honour suggests and the reasons which support them.
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