Chidley v Love & Ors - [2004] SADC 132

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHIDLEY v LOVE & ORS
Judgment of His Honour Judge Herriman
30 September 2004
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION
Consideration of natural and ordinary meaning of references to party to relationship being a 'doormat'.
Hadzel v De Waldorf (1970) 16 FLR 174; Jones v Skelton (1963) 1 WLR 1362; John Fairfax & Sons v Hook (1983) 72 FLR 190; Morgan v Odhams Press [1971] 1 WLR 1239; Parmiter v Coupland (1840) 151 ER 340; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Chakravarti v Advertiser Newspapers (1996) 65 SASR 527, applied.

DEFAMATION - PUBLICATION - BY AUTHORISATION OF DEFENDANT
Whether giving of interview to media amounts to authorisation to publish in whole or in part.
Broadcasting Services Act 1992 (Cth) s 206, referred to.
McManus v Beckham [2002] 1 WLR 2982, applied.

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATERS OF PUBLIC INTEREST
Claim that media statements made as part of social, moral duty or matter of public interest. Need for reciprocity to be shown.
Adam v Ward [1917] AC 309; Lange v Australian Broadcasting Corporation (1997) 145 ALR 96, applied.
M Gillooly "The Law of Defamation in Australia & New Zealand" The Federation Press, 1998, discussed.

DEFAMATION - FAIR COMMENT - FOUNDATION OF FACT
Discussion of public interest, whether facts truly stated and whether fair-minded person could honestly express the opinion. Notorious facts. Statutory defences.
Civil Liability Act 1936 (SA) s 6, referred to.
Rocca v Manhire (1992) 57 SASR 224; Telnikoff v Matusevitch [1992] AC 343, applied.

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
Considering of damage to reputation and feelings. No special damage. Whether aggregated or mitigated. Causation. Whether exemplary damages.
Carson v John Fairfax & Sons (1993) 178 CLR 44; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Praed v Graham (1989) 24 QBD 53; Triggell v Pheeney (1951) 82 CLR 497; Pamplin v Express Newspapers [1988] 1 WLR 116; Gumina v Williams (No. 2) (1990) 3 WAR 351; Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, applied.
H Luntz "Assessment of Damages for Personal Injury & Death" 4th ed., Butterworths Aust., 2002, discussed.

CHIDLEY v LOVE & ORS
[2004] SADC 132
INTRODUCTION

The plaintiff (“Chidley”) sues the defendants for damages for several acts of defamation allegedly initiated by words uttered by the first defendant (“Love”) in an interview with a television journalist on Monday, 8 July 2002, then repeated in a series of promotional television broadcasts (“the promotions”) and culminating in the full broadcast (“the edition”) on Monday, 15 July 2002 in a television program titled “A Current Affair” (“ACA”).
Although the pleadings put in issue numerous matters relating to publication, as the trial progressed the following matters became common ground or were otherwise uncontested:
(1)On Monday, 8 July 2002 Love gave an interview (“the interview”) to a journalist (“Madigan”) representing ACA and provided her with photographs concerning her previous de facto relationship with the plaintiff and the later court proceedings between them brought under the De Facto Relationships Act 1996 (SA). Those proceedings (“the primary proceedings”) were heard in this court by Smith DCJ in Action No. 1322 of 1998 and finalised by Judgment No. [2002] SADC 36 (“the primary judgment”). At the time Love gave the interview she appreciated that it was likely it would be used in an edition of ACA.
(2)ACA is a television program produced by Nine Network Australia Ltd (“NNAL”).
(3)NNAL owns the sixth, seventh, eighth and ninth defendants, and otherwise has in place agreements with the second and third defendants whereby those defendants broadcast materials provided by it, including the program ACA. (Where appropriate, I will refer to the second, third, sixth, seventh, eighth and ninth defendants as “the corporate defendants” or “the broadcasters”.)
(4)Following Love’s interview, a segment dealing with her relationship with the plaintiff and the primary proceedings was prepared to form part of the edition of ACA to be broadcast on Monday, 15 July 2002.
(5)Further to that, the promotions were prepared by ACA to advertise that segment of its Monday, 15 July edition.
(6)In the period between approximately Friday, 12 July and the edition on Monday, 15 July 2002, the promotions were broadcast by each of the broadcasters on between 30 and 40 occasions.
(7)The edition on Monday, 15 July contained a segment of approximately 12 minutes’ duration discussing the de facto relationship between Chidley and Love, the break‑up of that relationship and its consequences in terms of the primary proceedings and judgment. I will refer in due course to the content of that segment and to the content of the promotions which preceded it, but it is common ground that all of them were broadcast to audiences of ACA in the States in which the corporate defendants respectively held licences, namely, South Australia (second defendant), New South Wales (sixth defendant), Victoria (seventh defendant), Queensland (eighth defendant) and Western Australia (third defendant), and the Northern Territory (ninth defendant).
The plaintiff has asserted that Love’s statements in the original interview, each and every of the promotions and the edition, in each of the several States and the Northern Territory, constituted libels and he seeks compensatory and exemplary damages.
He has discontinued against the fourth and fifth defendants.
The remaining defendants have filed a single Further Amended Defence (“Defence”), denying that the words complained of were defamatory, saying that they did not carry the meanings contended for by the plaintiff, but carried other meanings which were true, and pleading that all publications were in any event protected as utterances in circumstances of qualified privilege, as fair comment upon a matter of public interest and/or as fair reports of the primary proceedings. They have otherwise relied upon particular statutory defences available in some places of publication.
By his Amended Reply (“Reply”), the plaintiff has taken issue with those defences and alleged that the words complained of, were published maliciously.
SHORT HISTORY
- of each party
A full history of the relationship between the parties and, indeed, the significant events in their lives preceding that time is contained in the primary judgment. I will not attempt to repeat it, but will touch upon those aspects which are pertinent to the determination of this matter and, where appropriate, will refer to and adopt the findings of Smith DCJ. Although, at the outset, counsel were guarded about committing their clients to the findings of Smith DCJ, ultimately, neither sought to contest them, although evidence was led by each which touched upon matters not specifically determined by him. In due course I will have to make findings about some of those matters.
Chidley was born in November 1935 in country New South Wales. He graduated in pharmacy from Sydney University in 1957 and shortly afterwards travelled to the United Kingdom, where he met the woman who was to be his first wife. They were married in Australia in 1962 and moved to live in Adelaide. The plaintiff then obtained employment in a pharmacy at Elizabeth Park.
In 1965 he purchased his own premises and established Chidley’s Pharmacy at Salisbury North.
Over the next six years he and his wife adopted four children, two boys and two girls.
In 1972 Chidley purchased a nearby delicatessen and in 1975 developed and opened a supermarket, which became known as Salisbury North Foodland. He moved his pharmacy into those premises. Later, he sold the delicatessen and subsequently bought two further supermarkets. In due course, they, too, were sold.
In the late 1970s he and a group of other pharmacists established a Guild after‑hours pharmacy in Salisbury, a business which was later moved to the Parabanks Shopping Centre. It was a very successful venture.
By about 1982 he was no longer working as a pharmacist, but he retained his shared interest in the Parabanks pharmacy, his sole interest in the Salisbury North pharmacy and his ownership of the Salisbury North supermarket.
As a result of those various transactions, he acquired substantial wealth, so much so that, by about mid‑1988, his assets totalled in excess of $3 million.
In 1986 he 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 his wife died.
On 17 January 1988 he met the first defendant.
For her part, Love was born in January 1944. She attended school until the age of 18 and afterwards worked as a dental nurse and then in a photographic studio.
In September 1964 she married and in April 1970 a daughter, Kerryn, was born of that marriage.
In 1975 she undertook a beautician’s course and subsequently obtained work in the beauty industry.
In 1976 she separated from her husband. They divorced the following year, she retaining custody of her daughter.
Her work in the beauty industry led to various promotions and by 1979 she was the South Australian area sales manager for Bentley Fragrances. It was a responsible position and involved her in considerable travel.
In 1987 she went to Darwin on a working holiday and formed a friendship with a person operating a charter boat. She worked on that boat for some time, but was back in Adelaide on 17 January 1988, when she met the plaintiff.
At that time she had assets which were valued at about $175,000.
- of their relationship
Chidley and Love first met at the house of mutual friends and, as the primary judgment found, he became anxious to pursue a relationship with her. In particular, he sought to dissuade her from returning to Darwin. For her part, the first defendant was plainly interested in that relationship, too, and there were other reasons, including an attractive employment offer and her daughter’s welfare, which further induced her to remain in South Australia.
At all events, the parties saw each other regularly in the early weeks of their relationship. On 4 February 1988 Chidley loaned Love $2,500. Subsequently, he took her to Melbourne to see a musical and, on 11 March 1988, purchased, in his own name, a house in Clarke Street, Norwood and offered it to her and her daughter to occupy. He did not require payment of rent. Love accepted that gesture but insisted on paying other property overheads.
Love and her daughter thereafter remained at those premises, but Love would on occasions stay overnight with the plaintiff at Yatala Vale. They did, however, maintain independent households and, as Smith DCJ found, did not actually begin a de facto relationship until later, when they moved in together to live at the plaintiff’s newly‑acquired premises at Highbury.
In the meantime, in mid‑1988 Chidley offered Love an expensive ring and proposed marriage. She did not accept either. In same year she accompanied him on business trips to America and within Australia.
In November 1988 he told her he wished the relationship to cease, whereupon she and her daughter left the premises at Norwood.
Smith DCJ found that their relationship resumed in early 1989 and that soon after then, Love accepted the ring previously proffered. Nonetheless, the parties remained at separate residences and Love continued her work for a perfumery business known as “Parfums”. She continued to accompany Chidley, however, on interstate and overseas trips.
In December 1989 Chidley sold the Yatala Vale property and purchased a residence at Highbury. It was then that Love moved in with him and, on the findings of Smith DCJ, their de facto relationship began. Later, both were involved in the design and construction of a house on Chidley’s Walkerville land and they moved there in April 1991.
Their relationship continued until 22 September 1997, when it was terminated by Chidley.
Later, in about 2000, Chidley became reacquainted with an old childhood friend, then widowed, and they married in August 2001.
- of the events leading to this action
The primary judgment was handed down on 12 April 2002 and Love was awarded a lump sum of $450,000. Costs were subsequently negotiated and agreed between the parties and the judgment sum with costs and interest was satisfied by the plaintiff on 6 June 2002.
(1) the interview
As previously noted, Love gave an interview to Madigan of ACA on Monday, 8 July 2002.
It appears that at about the same time, ACA was attempting by telephone to interview the plaintiff, but he refused their advances. It did, however, come to his attention that Love had likely given them an interview and, in consequence, his solicitor, Mr Howe, wrote to Love’s solicitor on 10 July 2002 in the following terms, inter alia (Exhibit P2, Tab 2):
He is of the view that both parties have already been subjected to enough unwarranted publicity and intrusion as a result of the matter, and he wants to put the entire matter behind him. He very much hopes that your client is of the same view. If your client, however, has decided to be interviewed, he accepts there is nothing he can do about that, but he would hope that your client would agree with his views that the parties should hereafter be entitled to dignity and privacy. We would be pleased to receive your response.
Love’s solicitor replied to that letter on 11 July 2002 in the following terms (Exhibit P2, Tab 4):
Our client succumbed to the approaches by the reporter and gave an interview on 8^th July 2002 without having had the opportunity to discuss the matter with us.
The writer also gave an interview yesterday making it plain that he wished sensationalism and invasion into private lives to be avoided.
In particular the writer pointed out to the interviewer the comments on page 3 of the Judgment to the effect that the Judge regarded both parties as honest and credible with no detectable vindictiveness.
We cannot control what bits the station chooses to use of both interviews.
We trust that it will focus on the law and not hone in on the individuals.
We are told that it will air on Monday or Tuesday of next week.
(2) plaintiff’s return to Adelaide
On Thursday, 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 Madigan and a camera crew and asked to comment on the primary judgment – he declined to do so. He was then pursued by Madigan and the camera crew through the airport and twice more invited to converse, but he declined.
(3) the promotions
As I have noted, the promotions were aired commencing on Friday, 12 July and continuing to the time of the edition.
(4) letters of 15 July 2002
The next legal development was that at 10.50 a.m. on Monday, 15 July, Mr Howe sent facsimile letters addressed to the executive producer of ACA and to the second defendant. The letters were in identical terms and advised that the plaintiff had seen promotions for the edition due to be screened on that same evening and considered that they were defamatory and unsupported by the decision in the primary proceedings. The letter foreshadowed defamation proceedings were the edition to proceed.
There are two aspects to this correspondence which require findings:
(4.1)The second defendant did not, by its defence, deny receiving the letter addressed to it and, indeed, Mr Howe gave evidence and produced documents which satisfied me, and I find, that the letter identified under Tab 6 of Exhibit P2 was indeed faxed by him to the proper facsimile address of the second defendant at the time and on the date alleged.
I am thus satisfied and find that the letter came to the attention of the second defendant.
(4.2)As to the facsimile addressed to ACA, the defendants originally denied its receipt and further denied the plaintiff’s pleading that the executive producer of ACA was then agent for the purposes of any such correspondence.
I was thus obliged to determine:
(a)whether the alleged facsimile was in fact received by the executive producer of ACA; and
(b)if so, did he represent the corporate defendants for the purposes of that communication?
As to the first of those matters, Mr Howe again gave evidence of having faxed the letter in question (Exhibit P2, Tab 5) to the executive producer of ACA. Other evidence disclosed that at the relevant time, that person was a Mr Hurley, but he was not called at trial and, indeed, had by then left that position. It then emerged that the receipt of that letter by the sixth defendant was acknowledged in the reply to the Notice to Admit. Further to that, a Ms Smithies, corporate counsel for NNAL, gave evidence, which I will not now repeat, as to the connection between ACA, NNAL and the sixth to ninth defendants inclusive. I am satisfied, on the basis of that admission and evidence, that that letter was received by ACA and the sixth defendant at about 10.50 a.m. (CST) on 15 July 2002.
As to the second matter, Ms Smithies disclosed, in particular, that ACA acted on behalf of the sixth, seventh and eighth and ninth defendants in the production of the program (T/C 477/478) and that the ultimate decision to broadcast the edition through each of those channels rested with Mr Hurley.
On the basis of that evidence, I am satisfied that the sixth, seventh, eighth and ninth defendants were, for the purposes of receipt of that letter from Mr Howe, represented by the executive producer of ACA.
I have already found that the second defendant was put on notice at the same time by a similar letter, but there is no evidence that the third defendant ever was.
The relationship between the second and third defendants and the remaining corporate defendants was, however, touched upon by Ms Smithies and it is convenient to deal with it at this point. She said they were companies affiliated with NNAL, itself the holding company for the sixth, seventh, eighth and ninth defendants. She produced documentation going to that relationship and it was respectively received as P19 and P20.
I have considered those exhibits. It is unnecessary for me to make any finding about the question of representation affecting the second defendant, but as to the third defendant, I am not satisfied on the evidence that Mr Howe’s letter of 15 July 2002 was effectively communicated to it simply by reason of the fact that it was sent to and received by Mr Hurley or the second defendant. Whether Mr Hurley had some obligation to bring it to the attention of the third defendant is unnecessary for me to decide. There is no evidence or documentation to show that he did and on the basis of what is before me, I am not prepared to assume it.
(5) the edition
The edition went to air on ACA on Monday, 15 July 2002.
(6) the events following the edition
Following the broadcast of the edition, Chidley’s solicitors wrote letters to the executive producer of ACA, the second defendant and Love’s solicitors, (Exhibit P2, Tabs 7, 8 and 9) advising they were intending to issue proceedings and, in response, NNAL denied liability, later confirming that its licensees were the sixth to ninth defendants inclusive and saying that it did not know whether the second and third defendants had broadcast the program.
(7) these proceedings

These proceedings were then issued on 19 August 2002 and ultimately, due to the plaintiff’s ill-health, were given a priority listing.
I do not now propose to discuss the witness evidence in detail. To the extent it becomes relevant or requires findings, I will deal with it in discussing individual topics. It is enough to say that the plaintiff gave evidence, that he called several witnesses as to his reputation, as to aspects of the de facto relationship and concerning the events surrounding the publications, and that the defence witnesses were Love and Smithies.
I propose now to deal with the separate issues raised by the pleadings:
The Publications
In his Amended Statement of Claim (“Statement of Claim”), the plaintiff thus relies upon three forms of publication of the asserted libel, namely:
(1)words uttered by Love in the interview of 8 July 2002 with Madigan, which were themselves defamatory, and which, he says, were uttered in circumstances whereby Love authorised and intended the corporate defendants to republish those words, or some of them, as a television broadcast or whereby such republication was the natural and probable result of her utterances;
(2)the broadcasts by the corporate defendants of the promotions advertising the edition to be screened on Monday, 15 July 2002. In the promotions, a statement made by Love in the interview and editorial comment were aired. There were slight variations in content, but neither party has sought to distinguish them one from another. Further, the plaintiff has not sought separate findings or assessments of damages in respect of each separate promotional broadcast, but has 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. I will deal with the alleged defamatory meanings in due course;
(3)the ACA edition itself, which was broadcast in all the licensed areas on Monday, 15 July 2002 and which, it is pleaded, contained several defamatory statements, including words uttered by Love and editorial material.
In considering the second and third of those publications, I am not prepared to assume that viewers of the relevant television channel necessarily saw all of the promotions and the edition: some 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. In this respect I expressly reject the defendants’ contention that it is wrong to consider the promotions in isolation and that viewers of them will likely have seen the edition. No evidence of that was adduced and there is no basis for any finding that it occurred.
Did any of the publications defame the plaintiff?
In considering this question, I should adopt the process, in each instance, of first identifying the words complained of, then considering the plaintiff’s pleading as to their natural and ordinary meaning and, if I am satisfied as to that, then determining whether that meaning is defamatory.
- as to the interview
In his Statement of Claim (paragraph 11), the plaintiff has set out extracts from the interview but has not identified within them those words or passages specifically relied upon as being defamatory. Nonetheless, by paragraph 43, he appears to be contending that the contents of the interview were themselves defamatory.
Based on his other pleadings, and in particular paragraphs 14, 15, 16 and 42, I can only infer that the passage relied upon is that set out in paragraph 11.1. The plaintiff has not pleaded as to the natural and ordinary meaning of those words, except in so far as it may arguably be inferred from his other pleadings (see paragraphs 14 and 42). Even so, neither with respect to paragraph 11 nor those other pleadings, does he assert that the statement in paragraph 11.1 (the essence of which is repeated in the promotions and edition) is other than unequivocal: he pleads no innuendo.
I will first approach this matter by considering whether any part of what was said by the first defendant in the interview was defamatory per se – that is to say, as though the conversation had never gone, and was never intended to go, further than the interview.
In that paragraph, it is pleaded the first defendant said to the journalist:
My use‑by date was obviously up and I had to go. You just can’t treat women like a doormat.
Whilst both of those sentences are correctly extracted from the interview, they are separated by several pages of conversation and located in contexts which do not make their conjunction, in the pleading, appropriate. Even were it arguable they should be linked, the reference to “use-by date” does not, in my opinion, add to or aggravate the “doormat” reference.
Having made those observations about the plaintiff’s pleading, it is not easy to discern just what the defendants say is the natural and ordinary meaning of those words, because in their defence they tend to couple them with other things said by Love. The nearest plea I can find as to their meaning in the interview is in paragraph 6A.1 of the Defence (which apparently responds to paragraph 42.1 of the Statement of Claim, itself a plea relating to the use of those words in the edition). I set out both of those pleadings:
Statement of Claim, paragraph 42
In the natural and ordinary meaning, the words and images of the broadcast meant and were understood to mean that:
42.1The plaintiff treated the first defendant like a doormat.
Defence, paragraph 6A
The first, second, third, sixth, seventh, eighth and ninth defendants say further that the words complained of in paragraphs 41 and 42 of the Amended Statement of Claim meant and were understood to mean:
6A.1that the first defendant was a person who offered little resistance to having been provided with less than just amount upon termination of her de facto relationship with the plaintiff;
I heard argument from the parties about this matter, but neither addressed me at length on the natural and ordinary meaning of “doormat”, nor, with one exception, how that might be ascertained by reference to various dictionaries or other authorities, nor as to its use in conjunction with the first sentence in the quoted extract, nor as to its contextual meaning, nor as to any distinctions between its use respectively in the interview, the promotions or the edition. As I have noted, the plaintiff infers by paragraph 42.1 that its meaning is unequivocal (as he may do if the meaning of the term is clear – see Ryan v Ross (1916) 22 CLR 1), whereas on its plain terms the defence contends for a contextual meaning.
I am satisfied that the natural and ordinary meaning of the expression – to treat somebody like a doormat – is tolerably clear, albeit that it is a metaphor. Its popular usage is well understood and is reflected in the definition of the Oxford English Dictionary (Vol 4, 2nd ed. reprint 1991) at page 958 “Applied to a person upon whom people ‘wipe their boots’”. Interestingly, in the Shorter Oxford English Dictionary (Vol 1, 1993), the word is defined as meaning, figuratively “a passive, subservient person”. In the Macquarie Dictionary (3^rd ed., 1997), it is accorded a stronger colloquial meaning “an uncomplaining person who meekly accepts ill-treatment or bullying”. In the Collins English Dictionary and Thesaurus (HarperCollins, 1993) (to which the defence referred me in addresses) it is said to have an “informal” meaning of a person who offers little resistance to ill-treatment.
There are thus two strands of meaning identified: one of a passive person who accepts a subservient status and the other of a passive person who accepts poor treatment by others. But it must be kept in mind that these are noun definitions and that the words complained of are used in an active sense, so as to convey that the plaintiff treated Love like a doormat – in that sense the latter definition more nearly accords.
I should pause here to say that during the course of the trial, it was suggested that the phrase embraced a wider meaning than that, namely, that the plaintiff habitually treated all women in such a way. That meaning was not pleaded, however, and the plaintiff must be confined to his pleadings (Hadzel v De Waldorf (1970) 16 FLR 174). In any event, the context of the interview makes it plain that Love is referring to herself as having been so treated by the plaintiff.
Returning then to the dictionary definitions, I am satisfied that the phrase, in isolation and in its natural and ordinary meaning, conveys, as I find, that Chidley took advantage of Love’s submissive or uncomplaining nature and treated her poorly.
Having observed that, I should immediately observe that those words do not, of course, appear in isolation. Rather, they are part of a very lengthy interview (P11) and I am satisfied it would be quite wrong to consider their meaning other than in the whole context of that interview (see Jones v Skelton (1963) 1WLR 1362 at 1371 and then John Fairfax & Sons v Hook (1983) 72 FLR 190 at 195 and Morgan v Odhams Press [1971] 1 WLR 1239 at 1245).
What then is the meaning of the expression in the context of the interview? The interview contains many references of importance and needs to be considered in its entirety, but the following extracts are particularly pertinent (these are quoted by reference to apparent time registers):
(1)At 2:34:20:
It’s just a closure that’s pretty devastating at the time…. um … no I didn’t really feel that I’d been pushed to the side.. two people have to be happy together… so probably it was time to go but you still have to handle it and it’s very difficult at the time.
(2)At 1:01:01 to 1:02:01:
Women have to stand firm if at a certain age they get told they (edit forward) that it’s time to go and start a new life and I feel especially as you get older you just can’t get the jobs that you would have been able to and I was nearly 54 and I was just not able to get the high level job back again so probably had I have been much younger I would have walked away from it.
1:01:36*****You just have to stand firm and focussed and not be pushed around. #and just continue … it’s very hard to go through a situation which takes five years to get a result
****1:02:01 My use by date was obviuosly (sic) up and I had to go and it’s pretty hard to start again# and I just feel that you’re supposed to go back to the planet you’ve come down from and it’s not quite as easy as that mmmm
(3)At 1:05:57:
There was usually a trip away once a year and there were always lots of people in the house Rex called it Rex hotel because it was wall to wall guests one lot would go next lot would come and I would always smile after I left I could see a christmas letter that he always sent around the world prior to me leaving was a letter said oh come and stay with us andthis (sic) went to people all around the world… after I left it said call in for a drink. So I smiled at that because really I had done a lot of work in that house there was always big groups of people.
(4)At 1:07:10:
It was difficult maintaining a top level job and managing the amount of entertaining we did at that time so after two and a quarter years I resigned from my position cos you just can’t stay up all night and then be at a meeting early in the morning and manage staff and be at a top level all the time and REx (sic) had also asked me to also give up that job…
(5)At 1:08:24:
I stopped because he kept at me about stopping also he wanted to travel when he wanted to travel and um you can’t always manage that with a full time job but yes that was one of this main sayings yes… stop work and um look after me I’m a full time job he said that quite often actually AND YOU DID I did in the end. but two and a half years later I stopped.
(6)At 1:09:30:
you maintina (sic) the household you entertain, people come and go constantly he had his meetings there I got the suppers in fact I cooked and cleaned more than I probably should have but that’s what you do once you give up work you fully immerse in your household um bit of gardening wasn’t a lot of garden but I did all that and swept up and did all the chores put the wheelie bin out… <edit out sonia’s interruption> so yeah full on actually and I’d feel a bit guillty (sic) if I sat down and read a magazine… it’s a funny feeling to give up work and if you give up work and if you’re not formally married it’s not quite the same you feel you have to keep going it’s quite a strange situation.
(7)At 1:18:28 to 1:19:27:
He gave me companionship especially in the early years he helped me financially at times although to talk about money was pretty difficult it was always a hard thing you could talk about anything but not money but I feel that I mostly had um balanced the ledger with all the work I did I was always last going to bed because rex (sic) went to bed the moment guests left but I would go to bed several hours later and that was fine while I was younger and could keep up with it but when I got viral pneumonia I just wasn’t able to physically do as much although I still had to do it but um didn’t probably do it as graciously because my health wasn’t very good and still isn’t particuarly (sic) bouncy because it takes it’s toll getting older. *****1:19:27 He helped me, but I also helped him … he helped me he also helped my daughter but I helped his children as well in different ways so I think it was fairly well balanced I don’t think you can really put a dollar sign on it. We travelled a lot but it was always to rex’s itinerary and to where he wanted to go but I enjoyed the travel.
(8)At 1:20:24:
Well he helped me buy the unit that I live in but then how are you going to pay the bills? and I had a very small allowance twhich (sic) was continued up to the January after the Septebmer (sic) when I left, that was cut off without warning and for the first time in my life I had to go on the dole and that was probably pretty difficult. The man I went to see said I was a clean skin cos I’d never been in before. It lasted two months only I couldn’t stand being on the dole and I finally got a real estate traineeship that’s what I ended up doing but you know when you’re training for something you’re not getting a lot of money so it was actually costing me often to work.
(9)At 1:25:03:
I did have a car it wasn’t signed over to me until the last um not that long ago actualy (sic) before the court case finished but it was a car that he’d won in the crows auction so it was a half price car … a nice camry so I did have that so that helped get around.
(10)At 1:27:47 to 1:28:11:
They have to realise <edit out forward >that it can’t be taken lightly a relationship… that both people contribute… it may not always be in a monetary fashion but it’s contribution in other ways that’s fairly equal actually so 1:28:11 it’s only fair that there’s some division and compensation for time spent and also for the work that’s done yeah I just think it has to be a fair situation for both parties and that you just can’t sometimes walk away and I know I would have had I been younger, much younger ..
(11)At 2:02:46 to 2:03:14:
***You shouldn’t expect somebody just to disappear after you spend a lot of time with somebody and um for rex and for myself they were probably very good years in as much as I was the years from age 44 to nearly 54 um they’re prime time prime years in your life and I think **********2:03:14you can’t expect someone just to completely just walk away.um
(12)At 2:03:27 to 2:04:20:
Rex you know is a very complex person if he wants to do something for you he will and then 2:03:38 ****when you’re gone you’re gone and *****he expected me just to go and the fact you couldn’t discuss money with him I couldn’t do anything else than put the claim in so I think for other women who whose partner’s (sic) make a lot of the decisions I probably should say women should stay in their jobs even if it’s very difficult just to maintain their independence so that if something does happen with the relationship they can then still go on with their jobs.
2:04:20 ****************** Rex probably feels that he did more than his bit for me but then I also feel the same. So um yeah 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.
(13)At 2:06:06 to 2:06:30:
I think I earnt that much money in that time. Tehre (sic) were always wall to wall people as I said before always big groups in the house and I really didn’t get any help very rarely did the botles (sic) and ashtrays even get put out before he went to bed. 2:06:30 So I think I earnt that money well and truly …had I got more maybe then people could say that but I think it’s a fair amount.
(14)At 2:07:38 to 2:10:21:
You just can’t treat women um like a doormat, sometimes women allow themselves to be a doormat but sometimes they’ve painted themselves into a corner where they have no option but to … (battery cuts out.)
2:08:02 You can’t just treat women like a doormat ….
2:08:23 I just feel women should continue working even if they have to bring outside help into the house to do the other things they’re required because ….
2;09:45 Women shouldn’t allow themselves to be a doormat within the household and they should keep their job so they do have um some independence because if you paint yourself into a corner from giving up your job you’re in a very vulnerable position and you really then have to tolerate what’s handed out. um I’m not talking about physically I’m talking about even financiallyu (sic) and then what you’re required to sort of balance things. um so 2:10:21 ******when you are no longer required in that relationship you shouldn’t just disappear or be expected to disappear there should be a fairness about the end of the relationship.
In the whole context of the interview, I am not persuaded that the reference to being treated like a “doormat” is a use of the phrase in the natural and ordinary meaning I have found it would have, were it used in isolation. I find that Love is conveying a different meaning; indeed, she is really saying these things:
(1)she sees herself as having been something of a pathfinder for other women confronted by her type of circumstance;
(2)that there are situations in which women are treated like doormats, others where a woman becomes a doormat because she allows it to happen and others where it happens because other pressures force her to become dependent;
(3)nevertheless, in none of those cases should women be treated in that way;
(4)that women should continue to work so they can retain a level of independence;
(5)that in her own case, she gave up her financial independence (albeit at the plaintiff’s request) in order to care for him and his household, that she thus painted herself into a corner and then had to accept the financial provision he made for her from time to time;
(6)that in then terminating their relationship and failing to pay her reasonable compensation for her non‑financial contributions to it and for her lost opportunity to secure her future, in about the terms awarded in the primary proceedings, the plaintiff treated her unfairly; that is, like a doormat.
I thus find that she uses the term “doormat” with reference to the relationship in two distinct ways:
(i)to describe the situation brought about by her own conduct in abandoning her employment in order to join the plaintiff and support his lifestyle, and thereby becoming financially dependent upon him, and a “doormat” in the passive sense. I should say at once that this is not a use of the expression which I find to be reflective of any poor conduct on the part of the plaintiff, nor am I satisfied it is defamatory; and
(ii)to describe the plaintiff’s conduct, after terminating the relationship, in not offering her reasonable compensation.

Neither of these uses matches the meaning relied upon by the plaintiff, nor for that matter the ones pleaded by the defendants, but I am satisfied that in the whole context of the interview, they are the meanings conveyed. The plaintiff should not, however, fail on that ground if the second of the meanings in fact carries a lesser defamatory meaning. I am satisfied it does.
The traditional test of whether a statement is defamatory asks whether publication is calculated to injure reputation by exposing a person to “hatred, contempt or ridicule” (Parmiter v Coupland (1840) 151 ER 340). The more modern one asks whether it would cause ordinary people of average intelligence to think less of the victim. These “hypothetical referees” are referred to by Brennan J in Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505-506, as people “who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made”.
Here, I am satisfied that, by either standard, that part of Love’s statement to the journalist in which she asserted that the plaintiff treated her like a doormat in not offering to properly compensate her after terminating their relationship, was, on its face, defamatory.
Otherwise, no specific defamatory meaning is pleaded with respect to any of the remaining interview extracts in paragraph 11 of the Statement of Claim and I am not prepared to find any of them are defamatory. There is, of course, criticism of the plaintiff’s conduct in paragraph 11.4, but in the context of a failed relationship. I am not persuaded it is of such an order as to satisfy the test of being defamatory, nor is it so pleaded.
Having found that the above utterances of Love in the interview carry a lesser defamatory meaning, I must then consider a further issue. By paragraph 12 of his Statement of Claim, the plaintiff pleads that by giving the interview, Love authorised or intended that the broadcaster would republish her statements or that the broadcasting of them was a natural and probable result of the interview. Accordingly, he contends that, in so far as the broadcasts might be found to have been libellous, the first defendant caused or contributed to those libels.
In support of that contention, the plaintiff cited Wainer v Rippon (1979) 42 FLR 44, but I am not persuaded that that case is directly on point. It concerned matters uttered by an interviewee in a “live” television program and the principal debate concerned whether, at common law or by statute, they were to be treated as in permanent forms.
The decision in McManus v Beckham [2002] 1WLR 2982 is more to the point. At paragraph 34, Waller LJ observed:
What the law is striving to achieve in this area is a just and reasonable result by reference to the position of a reasonable person in the position of the defendant. If a defendant is actually aware (1) that what she says or does is likely to be reported, and (2) that if she slanders someone that slander is likely to be repeated in whole or in part, there is no injustice in her being held responsible for the damage that the slander causes via that publication. I would suggest further that if a jury were to conclude that a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage caused by the slander, it is not unjust that the defendant should be liable for it.
Here, I am satisfied and find that, in participating in the interview with the journalist, Love well knew that what she said would likely be reported and that if she slandered someone, her words or some of them were likely to be repeated, or that there was a significant risk that they would be. So much is obvious, not merely from her evidence and the circumstances of the interview, but from the terms of the agreement she concluded with the journalist representing ACA (Exhibit 2, p.4), which assigned copyright in her utterances and the footage to ACA and provided her with an indemnity against any defamation proceedings.
By virtue of s.206 of the Broadcasting Services Act 1992 (Cth), “the broadcasting … of matter is taken to be publication of the matter in a permanent form”.
It follows, as I find, that Love has not only uttered to the journalist words that are defamatory in themselves and that, subject to any defences (which I will come to in a moment), she is accountable for them in the normal way, but further, to the extent she has appreciated, as I find she has, the likelihood of the whole interview or parts of it being published in permanent form as a broadcast, she is also liable as a joint tortfeasor with the broadcasters for any resulting broadcast libels.
In the circumstances of this matter, where it is common ground that the first defendant is indemnified by the remaining defendants, I am not, as I apprehend it, called upon to apportion her share of responsibility for any such libel.
- as to the promotions
As to the promotions, the plaintiff first relies upon the repetition, in each of them, of Love’s words implying that the plaintiff treated her like a doormat.
I have already found that the doormat expression as used in the interview carried a defamatory meaning in its particular context, but a lesser one than that conveyed by its use in isolation. In the promotions, however, it is used in a very limited context and, as I find it, quite a different one. It does not purport to confine the accusation to the plaintiff’s conduct after the relationship was over; indeed, it infers that that treatment was meted out during the relationship; in essence, that “she did everything for him” yet he rejected her and that, by her award, she has avenged those wrongs. In other words, it conveys, as I find it, the natural and ordinary meaning that, during the relationship, the plaintiff treated Love poorly and took advantage of her compliant nature.
I am satisfied that that allegation would tend to expose the plaintiff to hatred, contempt or ridicule or would cause ordinary people of average intelligence to think less of him. I am thus persuaded it is, on its face, defamatory. I will come to the asserted defences in a moment.
The plaintiff then relies (paragraph 15.2 Statement of Claim) on further editorial material in the promotions supplementing the doormat claim, saying that it carries the natural and ordinary meaning that “from a position of affluence, the plaintiff treated his former partner unjustly”.
The defence does not squarely plead to that assertion.
I am not satisfied that the quoted words in their natural and ordinary meaning convey the meaning pleaded. I take the reference in the promotions to be implying that notwithstanding the plaintiff’s wealth, Love stood up to him and had the satisfaction of obtaining a substantial judgment. I do not consider it implies any improper exploitation by the plaintiff of his wealth. In my opinion, the sting remains in the “doormat” reference and I am not persuaded it is aggravated by the remaining words in any of the promotions, nor that they convey something else of a defamatory nature.
- as to the edition
The entire text of the edition or broadcast is set out in the Statement of Claim and I will not repeat it, but the plaintiff has referred to those passages upon which he relies in support of his pleading as to the natural and ordinary meanings of the words used. He has set out those asserted meanings in paragraph 42.
As to the “doormat” expression, the context in which it appears is quite different from that of the interview and considerably broader than that of the promotions. For their part, the defendants have pleaded that in the edition it meant and was understood to mean that:
6A.1… the first defendant was a person who offered little resistance to having been provided with less than just amount upon termination of her de facto relationship with the plaintiff.
I am not satisfied that that is a proper contextual interpretation of the edition. Having considered the whole edition as reproduced in the video (P4), I find that the expression that the plaintiff treated Love like a doormat is there used in its natural and ordinary meaning, and so as to convey that both during and after the relationship the plaintiff treated Love poorly and took advantage of her compliant nature. For the same reasons expressed above I find the term, as used in the edition, is defamatory.
I will otherwise go to paragraphs 42.2, 42.3 and 42.4, which assert separate defamatory meanings. They read:
42.In the natural and ordinary meaning, the words and images of the broadcast meant and were understood to mean that:
…
42.2The plaintiff terminated his relationship of eight years with the first defendant and ejected her from their home with virtually nothing.
42.3The 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.
In response to them and in the same order, by their Defence the defendants have pleaded:
6A.The first, second, third, sixth, seventh, eighth and ninth defendants say further that the words complained of in paragraphs 41 and 42 of the Amended Statement of Claim meant and were understood to mean:
…
6A.2that the plaintiff provided the first defendant with less than a just amount upon termination of his de facto relationship with the first defendant;
6A.3that the first defendant had been the plaintiff’s home maker and companion and had given up her cosmetics career to care for him and had catered for his multitude of friends and business associates and that a just award in consequence of the termination of the relationship was $450,000.00 in addition to what the plaintiff had provided to her and that what the plaintiff had previously provided to her was not enough.
There is no direct response to Statement of Claim paragraph 42.4.
I have read the transcript of the edition carefully and have considered the video P4. I am not persuaded that, in their natural and ordinary meaning, the edition conveys what paragraph 42.2 pleads. Plainly, on any account, the plaintiff terminated the relationship, but I do not accept that the edition conveys that Love was left with “virtually nothing”. Plainly, it is disclosed that Love left with a home unit, a car and $5,000 and there was visual material supporting that. It might be argued that that information is tempered by the editorial assertion that these were “tokens” (line 39) or “very little” (line 59), but I am not persuaded that in the context, the ordinary person of average intelligence (Chakravarti v Advertiser Newspapers (1996) 65 SASR 527) would regard them as “virtually nothing”. Further, I am persuaded that that same person would readily appreciate that what the edition was conveying was that by the judgment, Love was being compensated not merely in terms of her immediate needs for housing and transport, but also for her contributions as a homemaker and her lost capacity to access remunerative work, losses for which the plaintiff had not previously been prepared to make provision.
In this respect, for whatever relevance it may have, the defendants’ pleading in paragraph 6A.2 more nearly reflects what I find to be the natural contextual meaning of the passages complained of (with the exception of the “doormat” reference).
The plaintiff specifically complains about the use of the word “left” in line 38 of the edition transcript, saying it does not convey the truth, namely, that the assets in question were in fact given to Love by him. I am not persuaded by that argument and for these reasons:
(1)it is, of course, correct to say that the words in that passage do not explicitly say that Chidley gave Love those assets, but I am satisfied that they imply it. The juxtaposition of the words “left” and “tokens” conveys the meaning, as I find it, that they were the sole assets which she derived from the relationship. In the context, otherwise made clear in the edition, of a relationship in which he was a millionaire several times over and she had ceased work to be his companion and support him and his social life, the inference is irresistible that he provided them. Indeed, it is significant that the plaintiff elsewhere complains about the use of the word “tokens” in that very context;
(2)in the context of the primary judgment, the question of how Love acquired those assets was of limited significance. The focus of the judgment and the award was upon her non‑financial contributions to the relationship and the extent to which she had sacrificed her earning capacity and her career, over those years of her life which were critical in terms of providing for her future. Of course, it took account of the financial benefit already provided by the plaintiff but, by any measure, it was not considered enough. Two passages from the judgment in the action are significant in this respect.
At paragraph 152, Smith DCJ commented:
It is my view that “needs and means” of the parties is a relevant matter. The defendant at all material times has been a wealthy man. Not so the plaintiff … To properly evaluate the respective contributions, regard must be had to the means of the contributor. The defendant could afford to be generous. On the other hand, the plaintiff had, as I said, two major assets – her companionship and her earning capacity. She gave the defendant her companionship. She counted on the permanence of the relationship. When she gave up her work and devoted herself to the relationship she gave up something which comparatively was of considerable value …
And at paragraph 156:
I remind myself that the order that I am to make is for the payment of “a round figure” which reflects in money terms what justice and equity demands as the entitlement of the plaintiff having regard to the two types of consideration and the other relevant matters. The plaintiff’s contributions as homemaker and companion over a vital and lengthy period of time in her life, outweigh, markedly, what she received in return. The de facto relationship ended at a time when the plaintiff was financially vulnerable by reason of having effectively lost the opportunity to resume gainful work and with it the ability to draw on such benefits, which normally attend a work life such as superannuation. This is a lost chance or opportunity and must not be regarded as a certainty. However, the value of this contribution was considerable. Further, the other matters to which I have had regard, namely the wealth of the defendant and his use of it in the relationship, the lack of means of the plaintiff together with the expectation reasonably held by the plaintiff of either marriage or a permanent relationship, all weigh in the plaintiff’s favour.
In summary, I am not persuaded that the meaning pleaded by the plaintiff in paragraph 42.2 is the natural and ordinary meaning conveyed by the words and film used in the edition.
As to Statement of Claim paragraph 42.3, the plaintiff relies upon lines 16 to 18, 21 to 23, 28 to 29 and the whole context of the edition. I am satisfied that those particular passages do, in their natural and ordinary meaning, convey that the plaintiff encouraged the first defendant to give up her job and required her to keep home and clean up after him and that he did not himself assist her very much in these areas. I should say, however, that:
(1)I am not satisfied they convey that she had no help of any kind – I consider the references to the absence of help mean and were intended to mean help from the plaintiff himself in connection with the specific matter of home entertaining and do not refer to help provided by others;
(2)I am not satisfied that they convey that the plaintiff treated her poorly (aside, of course, from the reference to “doormat”). In this respect, I refer to the following passages:
·    Love’s statement that the plaintiff “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” (lines 13 to 15): this conveyed a measure of even‑handedness and balance;
·    her acknowledgment of benefits conferred by the plaintiff, including overseas trips and what I infer to be the benefit of residing in an expensive house (lines 31 to 34);
·    her solicitor’s acknowledgment of the possibility that her claim might have failed (lines 47 to 49);
·    her solicitor’s statement that there are different sacrifices by and contributions to a relationship by the parties in it (lines 53 to 54);
·    the reference to the fact that in the primary proceedings each had blamed the other for the failure of the relationship (lines 55 to 57).
Whilst it is strictly unnecessary for me to find other than that the specific meaning relied upon by the plaintiff in paragraph 42.3 was not established to my satisfaction, it is difficult to make that finding without saying what I consider the edition does convey, particularly as it may be necessary to consider whether my finding conveys a lesser defamatory meaning. I am satisfied that the plain meaning of all of the relevant passages in the context of the entire edition is:
(a)that after the relationship began, the plaintiff encouraged Love to give up her career to support his business and social life;
(b)that she did so and he did little to assist her in what was a demanding role as a hostess for guests and functions;
(c)that after he ended the relationship, he was not prepared to adequately compensate her for her non‑financial contributions and the lost opportunities that this commitment had cost her and he opposed her claim for division of property all the way to judgment;
(d)that there was little precedent for a claim of her kind and that she undertook a risk in pursuing it;
(e)that in the event she was successful in recovering a substantial award;
(f)that the judgment set a precedent in those types of claims.
I should say, however, that I am not persuaded on those findings that any lesser defamatory meaning is conveyed. The finding in paragraph (b) plainly contains some criticism of Chidley but not of an order which, as I find it, would cause ordinary people of average intelligence to think less of the plaintiff or shun him. If I am wrong in that conclusion, I should say that I would nonetheless be satisfied, for reasons elsewhere discussed, that the defendant was entitled to justify and did justify such a meaning.
As to paragraph 42.4, the plaintiff relies upon it as the plain and ordinary meaning of the edition as a whole. For reasons already expressed, I am not persuaded this has been shown.
Thus far, I have found that in each of the promotions and the edition, the corporate defendants have libelled the plaintiff by asserting he treated Love like a doormat. Otherwise, I have found that Love defamed the plaintiff in the interview and further, by participating in it and saying what she did, she is jointly liable with those defendants for the broadcast libels.
Notwithstanding that the meaning of “doormat” which she conveyed to them in the interview was a different and lesser one, I am satisfied that in saying what she did, she well appreciated the risk that parts of it would be republished by the broadcast in such a way as to convey more defamatory meanings. To the extent she may not have appreciated exactly what misuse might have occurred, I am persuaded that goes only to the extent of her contribution to the broadcast wrong.
Justification
After the plaintiff’s evidence‑in‑chief was completed, the defendants sought to amend their pleadings to raise a plea of justification. I was at first minded to permit that amendment, but on fuller argument, refused it. Accordingly, this defence does not arise for consideration.

Further, for the reasons already advanced, the defendants’ attempts to justify their pleas as to the natural and ordinary meaning of the words complained of, do not fall for consideration because I am now satisfied they cannot do that unless the meanings they assert are lesser defamatory ones and, further, because I have, in any event, rejected the meanings pleaded by them in paragraph 6A.1 and otherwise have found against the plaintiff’s claims to which paragraphs 6A.2.3 and .4 respond.
I turn then to the other defences raised.
Qualified Privilege
By paragraph 7.1 of the Defence, the defendants assert that any defamatory matters were published on an occasion of qualified privilege because:
(1)they were fulfilling a social or moral duty to inform the public of some or all of the material complained of (7.1.1);
(2)the public had a reciprocal interest in receiving that information;
(3)they believed the litigation was a matter in which the public was interested.
I respectfully adopt the test of qualified privilege espoused in Adam v Ward [1917] AC 309:
A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
As to the question of duty, Gillooly (“The Law of Defamation in Australia and New Zealand”, Michael Gillooly, The Federation Press, 1998) on the basis of various authorities, suggests a test along lines which I respectfully adopt (p.171):
… would the great mass of people of ordinary intelligence and moral principle have considered it their duty to make or receive (as the case may be) the communication complained of?
As to public interest, the same author also observes (p.171):
In Howe v Lees (1910) 11 CLR 361, O’Connor J held that:
The interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or insubstantial. So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule.
More recently in Austin v Mirror Newspapers (1985) 3 NSWLR 354, the Privy Council described the type of interest necessary as:
An interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action.
It is clear therefore that mere idle curiosity or a desire for gossip, or the fact that people may find the defamatory statement ‘interesting’ will be insufficient to constitute an ‘interest’ for the purposes of the defence.
Here, I am satisfied the corporate defendants have made out a case for fulfilling a social or moral duty in informing the public of the outcome of the primary proceedings, which I am satisfied did establish a precedent in terms of recognising the significant value of non‑financial contributions to a de facto relationship and the high cost of the detriment suffered by a middle‑aged party opting to abandon work to become a full‑time companion and house carer. It did not, as I find it, give publicity to the decision and Love’s comments on it for mere idle curiosity or out of some desire to promote gossip.
It does not, however, follow that, in fulfilling that duty, the defendants had any need to employ the words I have found to be defamatory.
In any event, the defendants must then establish that the public had a reciprocal interest in receiving the information and that it was information in which the public was interested. In the context of a public statement or a statement through the media, that reciprocity must, in other words, be mutual and complete. In consequence, it is recognised as very difficult for a defendant broadcaster at common law to demonstrate that all receivers of a television broadcast have an interest or duty in receiving it. This problem was commented upon in Lange v Australian Broadcasting Corporation (1997) 145 ALR 96, where the court observed (at 116):
But, apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth … But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers.
Against that position, the defendants have not advanced any cogent argument or material in support of the claim that all viewers of the promotion or edition had an interest in receiving the information broadcast, in particular the words I have found to be defamatory. No exceptional circumstances of the kind mentioned have been advanced; indeed, no evidence of any kind was led as to audience interest.
This defence must therefore fail with respect to the broadcasts.
Is it available with respect to the first defendant’s interview? I am not so persuaded. On any account, indeed on her own evidence, Love’s intention was to inform not merely the journalist, who can be presumed to have had a reciprocal interest in hearing it, but, as she well appreciated, the public, of the outcome of the litigation. That did not oblige her to use the expression “doormat” in the sense I have found to be defamatory; indeed, no such term or conduct was adverted to in the judgment in question, nor has she shown that the viewers had a reciprocal interest in hearing that.
This ground of defence must fail with respect to all publications.
Fair and Accurate Report of Proceedings
I must then consider whether the words I have found to be defamatory comprised a fair and accurate report of the primary proceedings, as is pleaded in the Defence, paragraph 7.2.3.
Such a defence is available by statute (in South Australia by the Civil Liability Act 1936 (SA), s.6 and under similar legislative provisions in the other jurisdictions). There is a general requirement of good faith or absence of malice and, in those States where the law is codified, a requirement that they be for the information of the public.
Here, in view of my earlier findings, I am satisfied all publications were without malice and for public information.
Contemporaneity of the report is also necessary. Here, I am barely satisfied it has been proven. It is, of course, a relative concept but the publication was some three months after the proceedings concluded, albeit a substantial part of that period was occupied in negotiating appeal and costs questions.
The remaining question is, then, whether the words complained of were a fair and accurate report of those proceedings. I am not satisfied this has been shown. The trial judge made no findings justifying the use of the epithet “doormat”; indeed, its use appears to have been largely based not on the judgment but on ACA’s interpretation of what Love said in the interview.
This defence is not made out with respect to any of the publications.
Fair Comment upon a Matter of Public Interest
This defence is raised in paragraph 7.2 of the Defence and must be considered against my findings that the only defamatory statements published were that the plaintiff treated Love like a doormat, in the two different senses I have found that expression was used.
Plainly, in raising it, the defendants must first show that the offending words constituted an expression of opinion as opposed to a statement of fact.
I have had some reservations about this question, but ultimately have satisfied myself that, in each instance, they are expressing an opinion. The words cannot be read alone, but rather must be viewed in the context of what else is said in the particular publication. Seen that way, I have concluded they express a conclusion or opinion based upon the other facts alleged in each publication.
The next question is whether that comment is on a matter of public interest. For his part, the plaintiff says it is a private matter and that the defendants have simply chosen to embellish it and clothe it as a significant decision. For their parts, the defendants say that it is a matter of public interest because:
(1)it concerns the plaintiff in his public conduct – just what public conduct was never made clear to me. I am not satisfied there is any substance in that assertion;
(2)of the legal proceedings themselves – I am not persuaded that civil legal proceedings are ipso facto a matter of public interest;
(3)the proceedings concerned the rights of de facto partners to obtain orders for division of property – however inadequately expressed that may be, I am satisfied, for the reasons already discussed, that there is substance in the claim that these proceedings were a matter of legal and public interest.
The defendants must, however, go further than that in establishing a defence of fair comment. They must show that the comment was fair, that is to say, that it was expressed on the basis of facts truly stated and that it was honestly expressed (Gillooly, supra, at p.130 and following).
These are the aspects of the defence which require careful examination and upon which much of the evidence was led at trial.
The plaintiff attacked the truth of the various factual assertions in each publication and which purportedly formed the basis of the opinion. The defendants sought to establish their veracity, not by way of a defence of justification, but as a proper basis for fairly expressing the otherwise defamatory comment.
It is thus necessary for me to examine each of the facts alleged by the parties as, or otherwise capable of constituting, a basis for the “doormat” comment.
In approaching that task, I remind myself of these things:
(1)it is the defendants who face the onus of showing the comment was fairly and honestly expressed and based on facts truly stated;
(2)in addition to the evidence before me, I will have regard to the terms of the primary judgment;
(3)I must address the defence argument as to notorious facts.
- the facts upon which comment is said to be based
I will discuss these facts in so far as they are identified in the interview, the promotions and the edition. In the course of discussing each, I will touch upon the findings of Smith DCJ, the evidence before me and the facts said to be notoriously known.
I will then, if necessary, venture upon the question of whether, on the basis of any facts shown to have been truly stated, the comment was justified, that is to say, that a “fair‑minded person” could “honestly express that opinion” (Rocca v Manhire (1992) 57 SASR 224 at 229.
- the interview -
In discussing the interview, I will refer to those extracts referred to by the plaintiff and set out in paragraph 11 of the Statement of Claim, except that I will not deal with those passages which the defendants did not themselves plead as to any specific facts relied upon in the interview and I will assume they relied upon the whole of the interview.
In paragraph 11.2 of the Statement of Claim, there is Love’s comment: “You can’t expect someone to just completely walk away”. This is actually a comment but the plain inference is that this is what the plaintiff expected of Love. I am not persuaded it is untruthful. Elsewhere, there is reference to Chidley’s contribution of the car, the house and the $5,000 and, whilst he did later offer to pay a further $60,000, I am satisfied that Love is here referring to the position she was otherwise left in at separation and, in that context, the inference in her statement is true.
I cannot see that the words of paragraph 11.3 are words on which the plaintiff could rely in this plea, they are comment, anyway, so I will not deal with them.
There is then the statement in paragraph 11.4: “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 ash trays even get put out before he went to bed”.
As to that matter, the plaintiff quite correctly contends that there was no adjudication in those terms in the primary proceedings. To the contrary, he says, Smith DCJ found that the plaintiff was, indeed, generous towards the plaintiff and her wider family.
I should say that I am not persuaded that the matter ends there. The view taken by the trial judge is best found in paragraph 147 of the judgment:
For almost eight years, as my findings indicate, the plaintiff was the defendant’s companion. She accompanied him on his many interstate and overseas trips. She assisted him entertaining his friends and partners. She kept house for him for substantial periods of time without the assistance of a housekeeper. She cooked meals for him and from time to time for his children. She served him breakfast in bed. In return the defendant ensured that the plaintiff wanted for nothing. As indicated, he also helped her financially with her daughter, her mother and her foster family. She was treated to social outings, restaurant dining, and interstate and overseas trips.
Further to that is the passage in paragraph 152, set out elsewhere in these reasons.
Otherwise, I heard evidence from the parties and other witnesses as to this issue. I am satisfied that in the quoted remarks in paragraph 11.4, Love is referring to not getting “help” from the plaintiff, as opposed to other help. This is apparent from the whole context of the interview and, indeed, the passages in P11 at 1:09:30 and 1:18:28 to 1:19:27 (quoted elsewhere).
At the outset, I am satisfied and find that, whilst they were together, the parties did, indeed, entertain regularly and have frequent houseguests. There were differing accounts given by each as to the regularity of this but I am not minded to find either of them sought to actively mislead.
For his part, the plaintiff was, in my view, apt to minimise the extent of home entertaining that took place and, more particularly, the work that it involved, and it can equally be said that Love used exaggerated language in referring to “wall to wall people” and “always big groups”.
Chidley produced an extract from his electronic diary (P15), which recorded “Home Entertainment Details” between June 1992 and September 1997. In particular, it noted a total of about 156 nights over that time on which there were houseguests, a not insubstantial amount of hospitality. It also noted a series of special occasions, dinners, birthdays and the like when guests were entertained at home.
It did not, however, cover the period between December 1989 and June 1992, a period which, according to the primary judgment, was the most intense one socially, nor did it contain any references to what might be considered as less formal gatherings. On the plaintiff’s own evidence, there were barbecues involving “groups of people from time to time. And on a couple of occasions we would have had perhaps a larger number when the wine club had a function at my place …” (T/C 51). These functions occurred about once per month and would involve two or three couples. He went on to say that one of his sons would cook at barbecues and he thought he probably cleaned the barbecue after, but said that was not the sort of thing he would remember. He agreed that Love would have done the preparation for these and, in most cases, the cleaning up. He denied not helping with the cleaning up.
In her own evidence, Love spoke of her tasks as hostess for houseguests and home entertaining. With the former, she would generally prepare their breakfast and, as well, evening meals if they stayed at home. One family who frequently stayed, did, however, look after themselves more. She conceded, as well, that the plaintiff would often take houseguests out to dine.
As to casual entertaining, she said that after they began cohabiting at Highbury and she gave up work, she was the one who prepared food and served it and the plaintiff did not help her with that. He or his son did, however, manage the barbecue. She always cleaned up afterwards, she said, whereas the plaintiff would go straight to bed.
Nevertheless, I am satisfied, on the evidence of both of them, that there was, indeed, a substantial amount of entertaining and hospitality. I am further satisfied and find that, apart from tending the barbecue at social gatherings and taking houseguests to dinner, the plaintiff did not make any contribution to the labour involved in hospitality in terms of preparation, cleaning or other associated work.
In this respect, I prefer Love’s evidence over that of Chidley. After hearing his evidence, I was left with the distinct impression that he viewed those tasks as insignificant and as the usual responsibilities of a wife or partner. He could not offer any details as to the help he otherwise gave (beyond what I have found), suggesting it was not the sort of thing he would remember doing. I consider the true position was best reflected in his evidence speaking about his birthday party at T/C 79:
“I can’t tell you whether it was an awful lot of work. That’s what women do, generally. That’s a sexist comment but – I’m sorry about that.”
Also, at T/C 108: “I’m a full‑time job” – he described that as a jocular remark and in its terms that might be so, but it is nonetheless reflective of an attitude that it was Love’s task to care for him and, inferentially, his social life.
So whilst Love did, in the relevant passage, exaggerate the amount of entertaining and hospitality they participated in, I am persuaded she was using a figure of speech that was not intended by her to be taken literally or at its highest and would not likely have been so interpreted by a listener. I am satisfied there was, in fact, a great deal of hospitality provided and that what she said was, in essence, true.
There are then the references in paragraphs 11.5 and 11.7 to Love having to go on the dole and retiring without being on the breadline.
Plainly, she did have to access social security benefits, so that part of the statement is true. As to the assertion that the first defendant could then look forward to “retirement without being absolutely on the breadline”, I am not persuaded that that statement was untruthful; indeed, it may not even qualify as a statement of fact as opposed to an opinion. She is effectively providing an assessment of her financial position in the wake of the judgment. It is an assessment about which people might disagree, but it is hers.
It is disclosed that she already has a house, a car and some income‑earning capacity, albeit less than she had previously enjoyed. I am satisfied the average fair‑minded person would understand it in terms that, whilst having those things, without the benefit of the judgment she would have had no proper security for her future and would have found it difficult to support herself in retirement. There is, of course, some measure of hyperbole in her reference to “the breadline”, but in the context of all else that was said, I am not persuaded that this statement (if, indeed, it was a statement of fact) was untrue or that her opinion was rash and unsupportable. Indeed, her own perception of this is manifest in Exhibit P11, 2:31:41, where she expresses consciousness of the need to be very careful with the award she has obtained.
As to the remaining paragraphs 11.6 and 11.8 to 11.10, the matters raised in them are either undisputed or are merely comment, so no issues of truth arise from them.
Overall then, I am not satisfied that the facts upon which the defendants rely in their defence of fair comment are other than truly stated.

Against the background of all that evidence:
(1)I find, as Chidley frankly acknowledged on several occasions, that he very much resented any of the publicity attending his relationship with Love, the primary proceedings and their outcome, and that that resentment extended to the original press reporting, the attempts by Madigan to interview him and to those aspects of the promotions and the edition which were not themselves defamatory.
(2)I accept his claim that he was extremely upset by the events which occurred at Adelaide Airport. For a person sensitive to incursions into his privacy, it must undoubtedly have been a galling experience.
(3)As to the relevance of Chidley’s precarious state of health, I am left to make the best I can of his apparent claim that his withdrawal from involvement in external social activities and his quieter and less confident personality are wholly attributable to the libels.
On the basis of all I saw and heard, I am simply not prepared to accept that.
In the first place, it emerged from his wife’s evidence that their social life has, in fact, been quite an active one, albeit it has declined more in recent times due to his declining health.
Secondly, it is apparent he has substantially cut back the level of his business activity.
Thirdly, whilst I have been little assisted by any expert or other evidence, I find it inconceivable that the serious conditions from which the plaintiff suffers, and in particular the rapidly terminal one, have not, in significant ways, affected his social life, confidence and sense of wellbeing.
(4)I find that the publicity generated by the publication of the primary judgment, the promotions and the edition, the circumstances of the airport confrontation and the plaintiff’s illnesses, particularly the terminal one, have all separately and variously caused him hurt, embarrassment and loss of confidence, and have contributed to a reduced measure of social contact.
Of course, I accept that the effects of the defamations have themselves caused hurt, embarrassment, loss of confidence, emotional distress and a measure of social withdrawal, but these are not, on the evidence, defined or measurable psychiatric, psychological or medical conditions.
Where there are several potential causes or contributors to a single and identifiable condition, the matter of determining causation can be a difficult one. The problems attending it are usefully discussed in Luntz “Assessment of Damages for Personal Injury and Death” (4^th edition, Butterworths, Australia, 2002) and, of course, the learned author discusses March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at some length and, as well, the analysis of H L A Hart & T Honoré “Causation in the Law” (2^nd edition, Clarendon Press, Oxford 1985).
Those considerations are helpful where there is evidence of a defined result, such as an identified medical condition or group of conditions to which various of the competing “causes” may be attributed. But, here, I am persuaded, the situation is somewhat different. No medical or other expert evidence was called as to any specific emotional or psychological condition suffered by Chidley as a consequence of the publicity itself or the defamatory material or his known medical status, either at the time of the primary proceedings or at any time since then.
He spoke of the hurt he suffered from the defamatory aspects of the promotions and the edition, of his subsequent retreat from his previous level of socialising, of his loss of weight and his changed lifestyle. His corroborating witnesses supported the level of distress suffered by him at that time and the deterioration in his condition and level of confidence.
Had the matter rested there, the process of assessment would have been simpler, but he also spoke of his high level of sensitivity to and embarrassment at all the publicity the primary proceedings had attracted, not merely upon judgment but during Madigan’s attempts to interview him, and, as I infer, of a similar response to the non‑defamatory aspects of the promotions and edition.
Finally, then, there are the serious medical conditions from which he suffers, which plainly impose physical handicaps upon him and one of which has reduced his life expectancy to a matter of months.
In the face of that evidence, I am unable to conclude that this is a case where there is a discrete medical or other condition or group of conditions to which there are several contributing and/or contemporaneous causes. 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.
(5)I am satisfied that the extent of the publication was wide. The audiences for the respective capital cities (with the exception of Darwin) were of this order (P2, p.88):
Sydney  597,000
           Melbourne              608,000
           Brisbane                  447,000
           Adelaide                  160,000
           Perth  132,000
I will keep those figures in mind in assessing damages.
I turn then to the gravity of the defamatory imputations.
Whilst I have found that both the promotions and the edition portrayed the plaintiff as having treated Love poorly by taking advantage of her uncomplaining nature, I am 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 Love was the successful party.
In my 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 unjustified claims about each other. Such members of the community will not always accept on face value everything they hear said in such a context, whether before or after litigation – they will likely treat it with a measure of reserve.
For these reasons, I am not persuaded that any of the defamatory statements were particularly grave, nor that they were as inherently damaging to the reputation of the plaintiff as they might have been had they, for example, been attributed to a third party.
- matters of aggravation
As the focus of the plaintiff’s damages claim was upon injury to his feelings, he urged upon me that there were several aspects of the defendants’ conduct in this matter which served to aggravate this, and I will now deal with them.
(1)First, plaintiff’s counsel pointed to the warnings given to the defendants (and which I found the defendants received) about the content of the promotions prior to the edition going to air. These asserted that the promotions were defamatory and that the edition would likely be. Notwithstanding those warnings, the edition was broadcast.
I am satisfied that that conduct by the defendants aggravates damages, albeit only by the sixth to ninth defendants inclusive. I am not persuaded that it has otherwise been shown that the warning was brought to the attention of the remaining defendants.
(2)There was no apology tendered by the defendants, but nor was one solicited. I am not persuaded that this is a matter which in this instance aggravates the damages (c.f. Carson v John Fairfax & Sons Ltd, supra, at p.66).
(3)Plaintiff’s counsel criticised the conduct of the litigation by the defendants and that may, in some circumstances, be a relevant matter (Praed v Graham (1989) 24 QBD 53). He suggested that the defendants had taken every defence but, plainly, that is not so: they did not plead justification, at least until the time of trial. At trial they did, however, seek to amend to plead that defence and there was some delay in the progress of the trial until that issue was finally determined against them. I was asked to take account of that attempt and I will do so, but only in a very limited way because the issue was raised and then determined within a matter of days.
Otherwise, the plaintiff pointed to the failure of the defendants to respond fully to the Notice to Admit, albeit that they did later concede many matters: I will take some account of that.
It was said the litigation had been conducted contemptuously by the defendants. I am not persuaded of that, nor that it was conducted improperly or with bad faith, nor that the cross-examination of the plaintiff was other than appropriate (c.f. Triggell v Pheeney (1951) 82 CLR 497).
Complaints were made about the conduct of the defence in the matter of discovery and, indeed, it appeared to me that the defendants were less than forthcoming in this respect, hence the need to call Smithies on this issue. I do take account of that. Against it, however, I was told the defendants had cooperated in the plaintiff’s efforts to bring this matter on for hearing at an early stage, and that is to their credit.
(4)By his Reply, the plaintiff complained that the defendants’ actions in publishing the libels were malicious and, in that respect, he relied upon paragraphs 5 and 6 of the Reply. I will deal with the particulars under that paragraph in order:
(a)As to the general pleading in paragraph 5, I have not found the claim of fair comment made out but it does not thereby follow that the motive of the corporate defendants was to “entertain the public and earn income at the expense and embarrassment of the plaintiff”.
I have already found that the primary judgment was, indeed, a significant one, that it established a precedent and was such as to invite public interest and attention.
I am therefore satisfied that the defendants acted reasonably in bringing it to the attention of the public. That is not to deny that they also had a commercial interest. Plainly, that is always present in any media publication and it is not of itself determinative.
(b)As to paragraph 6.1, there can be no doubt that the primary judgment did not refer to the plaintiff treating Love like a doormat or giving her “the boot” but, of course, the primary judgment was not the only source of the broadcasters’ knowledge: they also had before them the contents of the interview and, plainly, drew upon them.
In that respect, their adoption of Love’s “doormat” reference was careless because they did not in fact convey the meaning I have found she conveyed to them, but I am not satisfied they acted intentionally, recklessly or maliciously in that respect. As to the expression “the boot”, that was editorial hyperbole, but I am not satisfied it was malicious and, indeed, it was, in substance, true.
(c)As to the plaintiff’s claim that the attempted interview with him was without prior warning (Reply, paragraph 6.2), that is not entirely true. He spoke of two attempts Madigan had made to interview him and he was, on his own account, actually anticipating an approach in the course of making his way by air from Sydney to Adelaide. Of course, he was not obliged to give an interview and whilst the conduct of Madigan at the airport left much to be desired, it is, sadly, in our society, commonplace. I am not persuaded that her intention (hence that of the sixth to ninth defendants) was “to embarrass the plaintiff and to suggest that he had something to hide”. In fact, the questions put to the plaintiff revealed a desire on the part of Madigan to obtain his version of events.
The final question put by Madigan was perhaps more provocative, but I am persuaded it was not put with the intention of embarrassing him but rather with a view to exciting him to make a comment.
(d)I have already dealt above with the pleadings in paragraphs 6.3 and 6.5 of the Reply.
(e)As to paragraph 6.4, I have found that the broadcasters went ahead with the edition in the face of the plaintiff’s protest that the promotions were defamatory. I have further found that that is a matter of aggravation, but I am not persuaded it was malicious.
- matters of mitigation
I turn then to the question of whether there are any matters which mitigate damages.
In the course of presenting their case, the defendants successfully defended a number of the alleged imputations and otherwise led evidence on their defence of fair comment, albeit that that defence was not successful. Further, Chidley himself expressed certain views in his evidence and cross‑examined Love in a way as to suggest certain matters.
That evidence having been properly admitted, it may be taken into account by me, if it is appropriate, in mitigation of damages (see Pamplin v Express Newspapers [1988] 1 WLR 116 at 120; Gumina v Williams (No. 2) (1990) 3 WAR 351 at 367). 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.
Here, I have already found that, whilst the plaintiff was in a number of respects generous to Love, he was nevertheless, in other respects, chauvinistic towards her. I refer to his evidence describing part of her contribution to the household as “what women do”, his cross‑examination 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 I am satisfied was her condition of viral pneumonia.
Thus, whilst the defence of fair comment has not been made out, I am satisfied there was some measure of truth in Love’s reported description of his treating her like a doormat. I am satisfied it should be considered by me in mitigation of damage.
In summary, then, whilst I have found that both the promotions and the edition were libellous and were very widely published, I have not regarded them as carrying the gravity contended for by the plaintiff and, indeed, I do not regard them, in all the circumstances, as very grave at all. Further, whilst I am satisfied they have injured the plaintiff’s feelings, I do not accept his claims that they were the only sources of his embarrassment, loss of confidence and social withdrawal – to whatever level that has been. The sheer impact of the publicity which the primary judgment, the promotions and edition brought about, the unfortunate state of the plaintiff’s health and his withdrawal from his former business activities have themselves caused the same or similar symptoms.
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 (see Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254). It was then mitigated in the way I have described.
I have not spoken of the separate impacts of the promotions and the edition. In terms of breadth of publication and the numbers of repetitions, I am satisfied it may be fairly concluded that the promotions would likely have been viewed by more people than viewed the edition. On the other hand, it can reasonably be argued that the edition more squarely identified the plaintiff and focussed more closely upon those matters which I have found did not fairly support the comment that he treated Love like a doormat.
I am inclined to the view that those factors tend to balance each other out and that the damages award I should make in each jurisdiction for the promotion should very nearly approximate the corresponding award for the edition.
I assess compensatory damages for the plaintiff in respect of the promotions as follows:
(1)In South Australia (second defendant):  $6,000
(2)In Western Australia (third defendant):  $1,500
(3)In New South Wales (sixth defendant):  $5,000
(4)In Victoria (seventh defendant):  $3,000
(5)In Queensland (eighth defendant):  $2,000
(6)In the Northern Territory (ninth defendant):            $1,500
______
$19,000
I assess compensatory damages for the plaintiff in respect of the edition as follows:
(1)In South Australia (second defendant):  $6,000
(2)In Western Australia (third defendant):  $1,500
(3)In New South Wales (sixth defendant):  $5,000
(4)In Victoria (seventh defendant):  $3,000
(5)In Queensland (eighth defendant):  $2,000
(6)In the Northern Territory (ninth defendant):            $1,500
______
$19,000
Exemplary damages
The primary modern authority for an award of exemplary damages is Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, where at 143 Menzies J observed:
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.
Having regard to my finding as to the nature of the libel and its seriousness, and notwithstanding those matters which I have found aggravate damages, I am not satisfied that the plaintiff has demonstrated 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.
I have already found that the primary judgment was a matter of genuine public interest. I am not persuaded it was in the nature of a sensational story published to attract custom. 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 my view, limited and might have been avoided had the broadcasters more carefully analysed and used the contents of Love’s interview. Even so, I am not persuaded that that failure was one of recklessness or arrogance. As well, as I have found, there was a measure of partial justification.
There will be no award for exemplary damages.
In making that finding, I am conscious of the email exchange between various defendants or their representatives comprised in the exhibit P12. They display a number of potentially conflicting remarks, e.g. in P12, the interviewer’s supervisor to the interviewer (9 July 2002 at 10.14):
How’d you go with the $450k spurned lover …and what chance of the bloke him,self (sic). Is he oversaes (sic) …if not can we bang him somewhere. If not, is there any vision on him etc …coz if we can crank it up bigtime, it could be the weekend promo.
Then (9 July 2002 at 12.06):
I guess the angle is when does a relatiponship (sic) qualify as a relationship etc …and there’s an element of women now getting a fairer deal etc. But best to have you chipping away at him and trying to win his confidence. We’re not trying to do a job on him at all etc. etc …
Then (9.7.02 at 12.30):
I’m trying to get hold of Mary’s lawyer now to see if he can access other pics that are supposedly lodged with the court. Unfortunately she has no home videos. I’m hoping that lawyer will also do an interview about the Defacto Relationship Act and how it works, what it means and what this case means etc… If he won’t do it, I’ll find some family law expert to take us through that.
On the same page:
I’ve spoken with Rex Chidley (the other lover!) he returns to Adelaide from Sydney on Thursday. I’m trying to talk him into an interview although from our call the chances are very very slim. I’ll ring him again tomorrow get a decision from him and if nothing myself and a crew will wait down the airport for his arrival home (can’t be too many Sydney to Adelaide flights!).

I was urged to pay some particular regard to the supervisor’s suggestion that they “bang” the plaintiff on his arrival at Adelaide Airport. There was no evidence before me as to what just what was meant by the expression “bang” but I take it to mean confront or surprise. Whilst that may be distasteful conduct, I am not persuaded that in the context of what else occurs in those email transmissions, there is any basis for a finding that this proposal or the conduct which followed it demonstrates contumelious disregard of the plaintiff’s rights. Indeed, it appeared to me that, notwithstanding her supervisor’s urgings, the interviewer was still herself attempting to persuade the plaintiff to talk to her.
Accordingly, there will be judgment as follows:
(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:
(2)As against the second defendant in the sum of:           $12,000
(3)As against the third defendant in the sum of:                 $3,000
(4)As against the sixth defendant in the sum of:              $10,000
(5)As against the seventh defendant in the sum of:            $6,000
(6)As against the eighth defendant in the sum of:              $4,000
(7)As against the ninth defendant in the sum of:                $3,000
_______
$38,000
I will hear the parties as to costs.