Fitzgerald v Southern State Broadcasters Pty Ltd & Anor - [2005] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FITZGERALD v SOUTHERN STATE BROADCASTERS PTY LTD & ANOR
Judgment of Her Honour Judge Cole
28 July 2005
DEFAMATION - ACTIONS FOR DEFAMATION
Statements made about the plaintiff by the second defendant on a talkback radio program broadcast by first defendant - action settled between first defendant and plaintiff - claim for pecuniary loss - assessment of damages - aggravated damages - exemplary damages - apportionment
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001; Wrongs Act 1936, referred to.
Chapman & Chapman v Australian Broadcasting Corporation [2000] SASC 146; Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Cornwall & Ors v Rowan [2004] SASC 384; Bateman v Shepherd (1997) Aust. Torts Reports 81-417 at 63,883; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) Aust. Torts Reports 80-728 at 69,237; Gray v Motor Accident Commission (1998) 196 CLR 1; Rowan v Cornwall & Ors (No 7) [2003] SASC 49; E Hulton & Co v Jones [1910] AC 20; Slipper v British Broadcasting Corporation Pty Ltd [1991] 1 QB 283 at 295, 300, discussed.

FITZGERALD v SOUTHERN STATE BROADCASTERS PTY LTD & ANOR
[2005] SADC 93
Judge Cole
Civil

The plaintiff, Barry Fitzgerald (“Dr Fitzgerald”) has brought proceedings for defamation against the first defendant, Southern State Broadcasters Pty Ltd, and the second defendant, Ms Valerie Armfield (“Ms Armfield”).
Dr Fitzgerald was, at the time of the events the subject of these proceedings, the Executive Director of the Law Society of South Australia. Dr Fitzgerald held that position from 1990 until January 2003.
Southern State Broadcasters Pty Ltd is and was at all material times the proprietor of the commercial radio station 5DN.
Ms Armfield was, at all material times, a legal practitioner. She is now suffering from Alzheimer’s disease. Her part in these proceedings was conducted on her behalf by her husband of 17 years and guardian ad litem, Mr John Lewis. Mr Lewis is the proprietor of Bull’s Transport Pty Ltd, a truck transport business.
The words of which the plaintiff complains were spoken by Ms Armfield on a radio program broadcast by the first defendant on 13 June 2003.
The plaintiff gave evidence, and called Detective Man, Mr Archer and Mr Abbott. Ms Armfield did not give evidence, but Mr Lewis did, Dr Hecker and Mr Short also gave evidence in Ms Armfield’s case. The first defendant called Mr Cordeaux and Ms Peacock.
Facts
Ms Armfield is an activist in the cause of Henry Keogh, who was convicted in 1995 of the murder on Friday 18 March 1994, of his fiancée, Anna-Jane Cheney. A sentence of imprisonment was imposed upon Mr Keogh, which he continues to serve. It seems that Ms Armfield formed the view in 1995, or shortly thereafter, that Mr Keogh had been wrongly convicted and imprisoned, and that defects in the investigation of the murder of Ms Cheney had caused his wrongful conviction. Since Ms Armfield formed that view, she has conducted a campaign, the ultimate objective of which is to bring about some sort of process by which Mr Keogh’s conviction can be overturned. The campaign has consisted of a variety of strategies directed at focussing public attention upon the matter. Mr Lewis has actively assisted his wife in her campaign by, for example, having the sides of one of the Bull’s Transport trucks painted with a message concerning Mr Keogh and arranging for it to be parked in conspicuous locations from time to time. Ms Armfield continues to conduct this campaign. These proceedings arise from statements made by Ms Armfield as part of that campaign on the Jeremy Cordeaux talkback radio program on 5DN on the morning of Friday 13 June 2003. Those statements related to events which occurred in the course of the police investigation into Ms Cheney’s death.
The Events of March 1994
Detective Man gave evidence in the plaintiff’s case. His account of that part of the police investigation into the death of Ms Cheney which is relevant in this case was not disputed.
Detective Man and Detective Senior Constable Fielding began enquiring into the death of Ms Cheney on the day she died, which was Friday 18 March 1994. In the course of those enquiries, on Monday 21 March 1994, Detective Man and Detective Fielding attended at the home of Dr and Mrs Cheney, the parents of Ms Cheney. Whilst there, Detective Man and Detective Fielding were introduced to Dr Fitzgerald and were told that he was Ms Cheney’s employer at the Law Society.
Dr Fitzgerald also gave evidence about this encounter. In late 1993 he had engaged Ms Cheney as a legal officer in the Professional Standards Section of the Law Society. Ms Cheney’s role involved the investigation of the professional conduct of legal practitioners. Dr Fitzgerald learned of Ms Cheney’s death on the weekend of 19 and 20 March 1994. On Monday 21 March 1994, Dr Fitzgerald telephoned Dr Cheney and arranged to go to Dr Cheney’s home to offer his condolences and his assistance. Dr Fitzgerald went to Dr and Mrs Cheney’s home later that morning and encountered Detective Man and Detective Fielding.
Dr Fitzgerald spoke to Detectives Man and Fielding on the morning of Monday 21 March 1994 about the work in which Ms Cheney had been engaged at the Law Society. Detective Man indicated to Dr Fitzgerald that this topic would be pursued with him in more detail at a later time. Neither Detective Man nor Detective Fielding took contemporaneous notes of their conversation with Dr Fitzgerald on 21 March 1994. At the end of that day, however, Detective Man made entries in the CIB journal. He gave evidence that the CIB journal was, in effect, a record to show that he and Detective Fielding were gainfully employed on the relevant day. It was not intended as a record of notes of their investigation. The relevant entry in the CIB journal for 21 March 1994 reads:
Spoke with Peter McKenzie boss of deceased re suspicions.
On 22 March 1994, Detective Fielding was required to make a more detailed report. In it he wrote, in relation to 21 March 1994, “Peter McKenzie present. He has suspicions re a case Anna had. McKenzie wanted to see us after we had spoken to parents re former employer who Anna-Jane was adjudicating with Law Society (Further enquiries to be made).”
It seems that Detective Fielding had referred to the CIB journal for Dr Fitzgerald’s name and had repeated Detective Man’s error.
Detective Man said that the recording of Dr Fitzgerald’s name in the CIB journal as Peter McKenzie was his mistake. He said he went through the police academy with a Peter McKenzie and the occurrence of a “z” in both names probably triggered the error.
I accept Detective Man’s explanation, and I find that the confusion over Dr Fitzgerald’s name arose in the way he said it did.
The Events of 2003
At all relevant times, Mr Archer was the producer of a television program called “Today Tonight” which is broadcast in South Australia in the evenings. Mr Archer gave evidence in the plaintiff’s case. He agreed that for some years prior to mid-2003, he had produced and put to air a series of stories for Today Tonight in relation to the Keogh case. Mr Archer was also the reporter in the programs.
On 9 June 2003 a Today Tonight program relating to the Keogh case was aired. Prior to the airing of that program, Mr Archer had contacted Dr Fitzgerald and discussed with him the appearance of the name Peter McKenzie in police documents which Mr Archer had read. In the course of the program, the appearance of the name Peter McKenzie in the documents, and in subsequent court proceedings (when the error was repeated) was related, and dealt with by means of a voiced-over explanation that Peter McKenzie was actually Barry Fitzgerald.
Mr Archer gave evidence that he had had contact with Ms Armfield in relation to the Keogh case. Ms Powell QC, counsel for the plaintiff asked:-
Q.Did you ever say to Ms Armfield that Dr Fitzgerald had admitted giving police the name of Peter McKenzie shortly following the death of Anna-Jane Cheney.
A.No, I didn’t.
There was a telephone conversation between Mr Archer and Ms Armfield subsequent to 9 June 2003 in which Ms Armfield told Mr Archer that Dr Fitzgerald had commenced proceedings against her. In evidence, Mr Archer said, on the topic of whether he had ever said that Dr Fitzgerald had given a false name to police.
A.In my conversation with Valerie Armfield when she decided to - when she told me about the action being taken, I have a feeling I reiterated the point that I hadn’t said - because clearly in that conversation the subject of what the action was about arose, and I reiterated to her, as I recall, that I hadn’t said to her that Dr Fitzgerald had said those things, and in fact he hadn’t said them to me.
Q.And that you hadn’t said it, in turn, to her.
A.No.
I accept Mr Archer’s evidence and it was not contradicted. I find that Mr Archer never said to Ms Armfield that Dr Fitzgerald had admitted giving a false name to police. In addition, it was conceded on behalf of Ms Armfield that Dr Fitzgerald did not do so.
The broadcast of the Today Tonight program on 9 June 2003 made the Keogh case topical.
Mr Lewis gave evidence that he was acquainted with a person he described as “Jeremy Cordeaux’s right-hand lady”. He contacted that lady and asked her to see if she could arrange for Ms Armfield to speak about the Keogh case on the Jeremy Cordeaux program.
Mr Cordeaux and the producer of his program, Ms Peacock, gave evidence in the second defendant’s case. The Jeremy Cordeaux program was a news/talk/current affairs show which aired on weekdays from 9 am to 1 pm. Mr Cordeaux said that after his program on 12 June 2003, he received a telephone call from Ms Armfield. Mr Cordeaux and Ms Armfield agreed in the course of that telephone conversation that Ms Armfield would speak on air the next day concerning the Keogh case. Mr Cordeaux, in evidence, said that he gained the impression in his telephone conversation with Ms Armfield that there was “some startling new evidence to further that cause” i.e. Mr Keogh’s cause.
After he had spoken to Ms Armfield on 12 June 2003 Mr Cordeaux passed the telephone to Ms Peacock so that she could speak to Ms Armfield. Ms Peacock gave evidence of that conversation:-
A:She wanted to come on the air at 9 o’clock and I had to explain to her that the start of the program dealt with news of the day, and not knowing what might be the opening interview, that generally if I was to call someone back for a talkback caller it wouldn’t be until after the 10 o’clock news. So we agreed upon that, she gave me her telephone number, I wrote it in the caller book for the next day to ring at 10 am.
Q.Was anything said to you by her at that time as to what the topic would be that she wanted to talk about.
A.It was to do with the Henry Keogh case.
Q.Then coming to the next day, 18 June, did you in fact make a telephone call as arranged.
A.I did. It was shortly after 10. I didn’t ring exactly on 10 because it was right as the news would be starting, I would wait until we were halfway through the news then I would explain to the person, which was generally in about the time we were in commercial break, she would have been on hold then, I guess, through the commercial break, then the sport and the weather, and then Jeremy has another thing of what is upcoming in the program, and then I would have let her know she was due to come on in.
Q.You said ‘I would have explained to the person’, explain that.
A.That they were shortly due to come on air and they would know - in fact she was talking to me prior to me putting her on hold prior to what happened and I told her she would hear Jeremy talking, after the news had finished Jeremy would talk and there would be a click on the line and she would know she was on the air, a slightly different sound.
Q.Did she express how she felt about going on air.
A.Yes, she was a bit nervous which I thought was a bit strange, but, yes, she was quite happy.
Q.This click you say you mentioned something about, what is the click.
A.You hear it down the phone line when you are waiting to go on the air. It’s when Jeremy then presses in the studio the button to enable the person to come on the air and I always told everybody they would hear the click prior to going to air, because they might, while they were waiting, have a conversation with their spouse or whoever, so rather when he went to them and they were having a conversation elsewhere, they would know they were on the air.
In cross-examination, Ms Peacock said:
A.... In this case she spoke to both Mr Cordeaux and myself the day before, organised a time to come on the air, and then when I rang her the next morning she was giggling with me and talking about ‘How will I go, what will I do?’, and I said ‘You will listen to the end of the news, he will come out of the news and talk about what is upcoming in the program, and then you will hear a click on the line and he will be saying ‘Hello Valerie’, or ‘Valerie on line 1’, whatever, and you will be talking with him just as you and I are talking now’.
HER HONOUR
Q.You specifically recollect saying that, do you.
A.I do because she had been on the phone with Mr Cordeaux the afternoon before and had said what she wanted to talk about, had then spoken to me, given me her telephone number, and then when I rang her back she said she was ready to go on the air and she was going to shut her office door.
Following her conversation with Ms Peacock on 13 June 2003, Ms Armfield spoke on air with Mr Cordeaux during a segment of Mr Cordeaux’s program called “The Court of Public Opinion”. Their on-air conversation was approximately 20 minutes long. Relevant extracts from that program are quoted below:-
JEREMY CORDEAUX: Hello, Valerie.
VALERIE ARMFIELD: Hello. How are you today?
CORDEAUX:      Very well, ma’am.
ARMFIELD:Well, thank you very much, Jeremy. By way of introduction to your listeners, perhaps I should say that my name is Valerie Armfield and I’m a lawyer and for the last five years I have been investigating the case of Henry Keogh.
CORDEAUX:      Mm.
ARMFIELD:Now, some of your listeners probably saw the Channel 7 program the other night, which was quite surprising.
CORDEAUX:      It certainly came up on the program those people who did see it seemed to be generally concerned by what was being said on the show.
ARMFIELD:Well, yes indeed.   And one of the most worrying things was the fact that Barry Fitzgerald, the head of the Law Society, when Anna-Jane died actually gave a false name to the police, and therefore no enquiries in relation to solicitors were ever made. So that is a very serious thing to do is to give a false name to a policeman thus stopping a line of enquiry; that was the first problem with the investigation into Anna-Jane’s death.
CORDEAUX:      But what has this got to do with a man that is sitting in jail? He’s been given two trials and he has been found guilty, has he not had his day in court?
There followed discussion of other aspects of the Keogh matter, and then the conversation concluded in this way:
ARMFIELD:Mm. And I want – what I want is for Henry to be released while they do the investigation.
CORDEAUX:      Alright. I have to move on, Valerie, ...
ARMFIELD:OK.
CORDEAUX:      ... but I’ve enjoyed talking with you and I wish you well with your campaign.
ARMFIELD:Well, will you let me be on – on, you know, your show?
CORDEAUX:      Yeah. Look, I call it the Court of Public Opinion and you’re more than welcome to come on any time you like.
ARMFIELD:Well, I believed that I would be on today.
CORDEAUX:      How do you mean?
ARMFIELD:Well, I want to come in and tell the listeners all of this.
CORDEAUX:      Well, you’ve told all the listeners; you are on the air and ..
ARMFIELD:Told –
CORDEAUX:      ... you’ve been on the air for over 20 minutes.
ARMFIELD:Oh. [Laughs] Well, that’s very good. I wasn’t sure if I was just telling you or everybody.
CORDEAUX:      No, no, no. No, I—when I—when you talk to me between nine o’clock and one, you are doing it very publicly and on the air.
ARMFIELD:Well, that’s good. And I hope that you will support, you know, the -- these activities of mine.
CORDEAUX:      Well, I certainly admire your passion, and you’re welcome to come on the show any time you like, particularly if you’ve got something new to add.
ARMFIELD:Oh, great. Oh, there will be. Thank you very, very much.
CORDEAUX:      It’s a pleasure.
A report by Nielsen Media Research was tendered (Exhibit P29). That report said that, on average, for the period 30 March 2003 to 14 June 2003, 14,000 people aged 10 and over were listening to 5DN between 10.00 am and 10.15 am on a Friday. The majority of listeners were over 55 years old. Most of the balance were over 40.
The Imputations
In the plaintiff’s statement of claim, ten defamatory imputations are pleaded.
Ms Armfield, in her defence, simply denies these alleged imputations. In addition, she pleads that paragraph 6.6 and 6.7 “contain a rhetorical imputation and ought to be struck out”.
It is a matter of law as to whether words bear a defamatory meaning. An objective test applies; words are construed in their natural and ordinary meaning, which is a meaning which reasonable people of ordinary intelligence with the ordinary person’s general knowledge and experience of worldly affairs would take from the words. This ordinary person is a layman, not a lawyer, and reads (or hears) the words casually rather than carefully (see Chapman & Chapman v Australian Broadcasting Corporation [2000] SASC 146 per Lander J and the authorities cited therein).
The objective test must be applied to each of the imputations pleaded in paragraph 6 of the Statement of Claim.
I will set out each of the imputations pleaded together with my determination in relation to each of them:
6.The broadcast was defamatory of the plaintiff in that the audio in its natural and ordinary meaning meant and were understood to mean that:
6.1     the plaintiff gave a false name to a police officer;
This is the natural and ordinary meaning of the words “the fact that Barry Fitzgerald, the head of the Law Society, when Anna-Jane died actually gave a false name to the police ...” The imputation alleged arises from those words.
6.2     the plaintiff gave a false name to a police officer in order to impede a line of inquiry in relation to the murder of Anna-Jane Cheney;
This is the natural and ordinary meaning of the words quoted above, together with these further words “So that is a very serious thing to do is to give a false name to a policeman thus stopping a line of enquiry; ...” The imputation alleged arises from those words.
6.3     the plaintiff was protecting solicitors who may have had information in relation to the death of Anna-Jane Cheney;
This is less clear than the imputations pleaded in 6.1 and 6.2. On balance, however, the juxtaposition of:
·the description of Dr Fitzgerald as “the head of the Law Society”
and the words
·“actually gave a false name to the police, and therefore no enquiries in relation to solicitors were ever made”.
·and the statement quoted in 6.2 above
would suggest, without more, to the ordinary person, that Dr Fitzgerald acted purposively with the motive pleaded. On balance, this imputation arises.
6.4     the plaintiff committed criminal offences, including attempting to obstruct or pervert the course of justice;
A reasonable person of ordinary intelligence and ordinary knowledge and experience of worldly affairs would be likely to be left with the impression that the plaintiff, in giving a false name and stopping a line of enquiry, must have committed a criminal offence, even though it is unlikely that the ordinary person of the test would know the precise elements of attempting to obstruct or pervert the course of justice. This imputation arises.
6.5     the plaintiff impeded or deflected police investigations into the murder of Anna-Jane Cheney.
This pleading adds nothing, in substance, to 6.1 and 6.2.
6.6     the plaintiff was a person unfit to occupy the position of Executive Director of the Law Society or equivalent positions of trust and responsibility;
On balance, I do not consider that this is a matter which is likely to occur to the ordinary listener upon hearing Ms Armfield’s words. It may occur to a lawyer but not, I think, the ordinary listener of the applicable test.
6.7     the plaintiff cannot be trusted;
This is too general an imputation to be drawn from the specific words complained of.
6.8     the plaintiff lied to police;
This adds nothing to 6.1.
6.9     each of the facts and imputations set out in sub-paragraph 6.1 to 6.8 herein were consistent with conclusions of fact reached by journalists responsible for the production of a special presentation regarding the Henry Keough (sic) case broadcast by the Channel 7 network on its “Today Tonight” program aired on 9 June 2003; and
I have found that the imputations pleaded in 6.4, 6.6 and 6.7 do not arise. The imputation pleaded in 6.5 adds nothing to the imputations pleaded in 6.1 and 6.2 and the imputation pleaded in 6.8 adds nothing to the imputation pleaded in 6.1. Insofar as it relates to sub-paragraphs 6.4 to 6.8, this pleading fails. However, it succeeds in relation to the imputations in 6.1, 6.2 and 6.3. The words “Now some of your listeners probably saw the Channel 7 program the other night, which was quite surprising” together with “And one of the most worrying things ...” would leave the ordinary person with the clear impression that the allegations being made by Ms Armfield came from the Channel 7 program.
6.10   the second defendant had conducted an independent, lengthy and thorough investigation into the prosecution of Henry Keough (sic) and was, by reason of that fact and the fact that she was a qualified legal practitioner, satisfied, as should any listener of the broadcast, that the facts and imputations set out in sub-paragraphs 6.1 to 6.8 herein were correct.
This sub-paragraph does not plead a separate defamatory meaning, but seeks to imbue other imputations with a greater sting. In the course of her on-air conversation with Mr Cordeaux, Ms Armfield said that she was the only person who had “read the committal, the first trial and the second trial and compared all of the evidence.”

The plaintiff pleaded in paragraph 7 of his statement of claim:
7. Each of the facts and imputations set out in sub-paragraphs 6.1 to 6.10 herein were untrue or not reasonably open.
It was not disputed, and I find, that Ms Armfield’s defamatory remarks were untrue.
Knowledge
Ms Armfield pleaded that she did not know that her conversation with Mr Cordeaux on 13 June 2003 was being broadcast, and that she did not intend that it should be broadcast.
The last part of the conversation which was broadcast, quoted above, raises the issue of the state of Ms Armfield’s knowledge as to whether she was on air. She said “Well, will you let me be on - on, you know, your show?” and “Well, I want to come in and tell the listeners all of this”.
Those remarks must be interpreted in the light of all of the evidence of Mr Lewis, Mr Cordeaux and Ms Peacock about the events leading to the broadcast. The task of ascertaining Ms Armfield’s state of mind in circumstances where she is unable to give evidence is not straightforward.
Having regard, however, to the events and conversations leading to the broadcast and in particular to Ms Peacock’s account of her conversation with Ms Armfield immediately before the broadcast, I find that at the time Ms Armfield made her remarks about Dr Fitzgerald, she knew that she was on the air.
As to the assertion on behalf of Ms Armfield that she did not intend that her remarks be broadcast, that is simply unsustainable. Her intention in contacting Mr Cordeaux in the first place was to be heard on air. Her response, after she expressed some confusion at the end of the broadcast conversation and was told that the conversation was on air was “Well, that’s good.”
Counsel for Ms Armfield did not seek to rely on the evidence of Dr Hecker in relation to this issue.
The First Defendant
The first defendant, Southern State Broadcasters Pty Ltd, has settled with the plaintiff for the sum of $40,000. At trial, Mr Swan, counsel for Southern State Broadcasters Pty Ltd, applied for the removal of Southern State Broadcasters Pty Ltd as a defendant, and for its part in the action to be that of a third party. That application was not opposed and it was granted. I have continued to refer to Southern State Broadcasters Pty Ltd as the first defendant, for convenience.
The Second Defendant - Defences
The defence originally filed by the second defendant was handwritten, evidently by Ms Armfield. It was filed on 26 November 2003.
On 16 July 2004, an amended defence was substituted. In relation to the alleged imputations set out above, the second defendant pleaded:-
5.As to paragraph 6 of the Statement of Claim:
5.1 The Second Defendant denies each and every allegation set out therein.
5.2 Says that paragraph 6.6 contains a rhetorical imputation and ought be struck out.
6.Further or in the alternative, insofar as the meanings set out in paragraphs 6.1, 6.7 and 6.8 of the Statement of Claim are found to arise, they are true in substance and in fact.
At trial, a further amended defence was substituted for the amended defence. The plea of justification was not repeated.
Paragraph 13 of the further amended defence says:-
13.The Second Defendant also relies on section 5 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 and says that the Plaintiff cannot receive more than $40,000 which has already been satisfied by the First Defendant.
This argument was abandoned by Mr Riggall, counsel for the second defendant, in the course of the trial.
At trial, in the end, the second defendant did not argue any positive defence. Her case on liability rested simply upon a denial of the imputations and the assertion on her behalf, based upon the transcript of the interview broadcast, that she did not know she was being broadcast.
Damages
The action between the plaintiff and the first defendant has settled. There remains the claim by the plaintiff against the second defendant, the first defendant’s third party notice against the second defendant and the second defendant’s contribution notice against the first defendant.
The first and second defendants are joint tortfeasors. They are jointly and severally liable with respect to compensatory damages. The first defendant has settled with the plaintiff for the sum of $40,000. I do not know the rationale for that figure. Pursuant to s 5 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, the plaintiff’s action against the second defendant survives the settlement.
By the end of the trial, the approach of all parties seemed to be that the Court should assess damages in respect of the slander as against the second defendant without regard to the settlement, and bring the settlement into account in dealing with the third party notice and the contribution notice. That is the approach I have taken.
Compensatory damages
Pecuniary harm
The plaintiff made a claim for pecuniary harm without being able to prove special damages.
Dr Fitzgerald gave evidence that, prior to taking up the position of Executive Director of the Law Society of South Australia in 1990, he was the chief executive of the Australian Catholic University of Ballarat. Prior to that, he was the Dean of Education of the Ballarat University. Whilst director of the Law Society, he played a leading role in establishing a wider role for the Law Society in practical legal training. He was involved with about six Law Council of Australia groups. He was instrumental in forming an association of the CEOs of the Law Societies of all of the common law countries. In 1996, he was the company secretary of Law Guard Management, the company which managed the professional indemnity fund. In his early years with the Law Society, he was on the national board of St John’s Guide health system.
Dr Fitzgerald gave evidence that immediately subsequent to his retirement as Executive Director of the Law Society, he entered into a contract with Willis, the national insurer of many Law Society funds in Australia to assist them with a project they were undertaking with the Law Society of Hong Kong.
Upon his retirement, Dr Fitzgerald received a letter from the Chief Justice’s Chambers dated 10 February 2003 which canvassed the possibility of involving Dr Fitzgerald in “the Judicial College”. Nothing further has come of that approach to date.
Dr Fitzgerald received a letter dated 3 February 2003 from the Commonwealth Attorney-General’s Department which said that his curriculum vitae had been circulated to relevant officers within that department. The letter said “We may find some areas of mutual interest in future”. Nothing further has come of that approach either.
In July 2003, Dr Fitzgerald entered into a consultancy agreement with the Queensland Law Society pursuant to which he provided a comprehensive review of all of the educational services provided by that body to professionals in Queensland.
Dr Fitzgerald was also engaged by the Law Society of the Australian Capital Territory to review the provision of practical legal training in the ACT.
The consultancies with Willis, the Queensland Law Society and the ACT Law Society were all negotiated prior to the defamation of Dr Fitzgerald on 13 June 2003, the subject of these proceedings. Dr Fitzgerald completed his work pursuant to all three consultancies within 2003. In each case, he produced a substantial report. Dr Fitzgerald received a letter from the Queensland Law Society dated 30 October 2003 praising his work. An extract from the minutes of the Law Society of the ACT of 21 July 2003 was tendered. It was noted that the President described Dr Fitzgerald as having done “an excellent analysis of practical legal training in Australia”. No further consultancies have been offered to him to date, although Willis has approached him once more recently for assistance on an informal basis without a fee.
Dr Fitzgerald now runs a bed and breakfast establishment in Eaglehawk, Victoria, with his wife. He also works part-time (15 to 20 hours per week) as an administrator at the local golf club, a position he took up when he formed the view that it was unlikely that further legal consultancies would be forthcoming.
In recent months, Dr Fitzgerald applied for a position on the board of the Bendigo Health Care Group. In the application process, he was required to complete a declaration of private interests. One of the questions on that declaration was whether he was a party to any litigation or threatened litigation, either criminal or civil. In his response, he mentioned this action. He was interviewed, and this action was discussed at the interview. Dr Fitzgerald was not offered the position.
On the question of why offers of consultancies “dried up” after 2003, Dr Fitzgerald said, in evidence:-
My concerns were that I had an allegation out there in the wider public in the legal profession, both in this State and I am aware from contact with colleagues in other law societies who were aware that this matter was on the go, and was unresolved, was hanging out there with a question as to what my status was, that was coincidental with the fact that no other work of this kind, or significant work and significant income producing work in fact emanated in the months following the uttering of the defamation.
In answering the plaintiff’s claim for unquantified pecuniary harm, Mr Riggall pointed to the absence of any positive evidence that the defamation of Dr Fitzgerald had influenced any prospective client or employer to Dr Fitzgerald’s detriment. Mr Riggall also pointed to the evidence of Mr A Abbott and Mr A Short, both legal practitioners in Adelaide, both of whose evidence on this point was to the effect that their individual views and their perception of the general view is that Dr Fitzgerald enjoys and enjoyed a very good reputation at all relevant times.
Mr Riggall submitted that the plaintiff’s consultancy work tended to emanate from personal contacts made by him in the course of his career and that such relationships were unlikely to be affected by a defamation of the type complained of. He pointed out that there was no direct evidence to the contrary.
Ms Powell referred to the decision of the High Court in Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, the Full Supreme Court of South Australia in Chakravarti vAdvertiser Newspapers Ltd (1998) 72 SASR 361 and the High Court in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.
It is relevant to the question of whether damages should be awarded on account of overall loss of business to consider aspects of the content and circumstances of the defamation complained of. In Chakravarti, the plaintiff was a qualified and experienced finance executive. An article was published in the Advertiser which contained the untrue imputations that he was involved in criminal misconduct in the course of his employment at Beneficial Finance in respect of loans from Beneficial Finance to himself, and that by reason of his misconduct he was not a fit and proper person to be or remain an executive of Beneficial Finance. The trial judge found that Mr Chakravarti lost his job (which was subsequent to his employment with Beneficial Finance) as a direct result of the defamation, and that, because of his inability to clear his name publicly, he had been out of work ever since.
By way of contrast, in the present case, the slander was published to a smaller segment of the community. The audience was not likely to have included as many members of the business community relative to the publication of an article in The Advertiser. The slander was more particularly tied to a particular incident; it did not amount to an allegation of misconduct for personal gain in the ordinary course of business. There is no evidence of a direct impact upon Dr Fitzgerald’s employment or engagement as a consultant.
I bear in mind the remarks, referred to by Ms Powell, of Bingham LJ in Slipper v British Broadcasting Corporation Pty Ltd [1991] 1QB 283 at 300:
Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.
In Chakravarti, Kirby J said at paragraph 179:
... However, in this case, the real gravamen of the appellant’s complaint was one of general damage to his reputation and hence to his employability as a senior finance executive. In this sense, the damage was to his economic capacity. It therefore sounded in general damages.
I bear in mind the limited and fairly specialised range of consultancies engaged in by Dr Fitzgerald to date, though I expect that his capacities go somewhat beyond that range. Still, such consultancies would not be as plentiful as, say, positions in the finance sector.
In the end, I doubt that the consultancies of the kind offered by the ACT and Queensland Law Societies have been affected.
There will be no specific allowance for pecuniary loss. The evidence in relation to Dr Fitzgerald’s concerns about the effect of the defamation upon his work and consideration of the effect of it upon his reputation, will sound in general damages.
General Damages
The basis for an award of damages for defamation is well established. The High Court said, in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44:
... Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant.
I have no doubt, on the basis of Dr Fitzgerald’s evidence, that he experienced genuine distress and hurt upon learning about Ms Armfield’s statements on the Jeremy Cordeaux program of 13 June 2003. He said in evidence (p41 transcript):
Q: Can you tell her Honour how you reacted to what you heard was said about you.
A. I was staggered. I was extremely disappointed. I was probably, I don’t know about ‘distressed’ is the correct word, but the impact of what was being claimed was such that it did cause me a great deal of distress. I felt that I had left the Law Society and the legal profession here with high credentials and public credibility, and my credibility on both counts was being attacked by that claim that was both malicious and false.
Dr Fitzgerald’s sole professional contact with Ms Armfield had occurred when he wrote an article about her son and her for the Law Society Bulletin in 1996. He had thought that Ms Armfield would have positive feelings in respect of him, and so was surprised by the slander.
Dr Fitzgerald believes that the defamation of him was more noticeable for having occurred in the context of a discussion about the Keogh case. The fact that the context of the defamation related to the death of Ms Cheney, of whom he was obviously fond, added to his distress.
All of the evidence points to Dr Fitzgerald enjoying a very good reputation. I accept, on the basis of his evidence, that Dr Fitzgerald holds a genuine fear that Ms Armfield’s defamation of him has sullied that reputation. This is so notwithstanding the evidence of Mr Abbott and Mr Short that their impression of him and his reputation is unchanged. I also accept that Dr Fitzgerald genuinely fears that the defamation may have affected his prospects of obtaining consultancy work and board appointments.
I bear all of these matters in mind in assessing damages. I also have regard to the demographic of the audience for the Jeremy Cordeaux program on 13 June 2003, the time of the broadcast, being 10.14 am on a Friday and the 14,000 listeners, all in South Australia. I bear in mind also, of course, the substance of Ms Armfield’s words and the imputations examined above.
Both parties referred, in their written submissions, to numerous cases for the purpose of comparing the quantum of damages. I take all of those cases into account. I bear in mind the approach of the High Court and the Full Supreme Court in Chakravarti v Advertiser Newspapers Ltd (supra) and the approach of the trial judge and the Full Supreme Court in Cornwall & Ors v Rowan [2004] SASC 384.
In the end, I have arrived at an award of $45,000 by way of general damages, excluding any consideration of aggravated damages.
Aggravated Damages
The plaintiff claimed aggravated damages against Ms Armfield. The basis for this claim was not particularised in the Statement of Claim and it seems that no particulars were sought prior to trial.
Aggravated damages form part of the general award of damages, unlike exemplary damages which are a distinct category of damages.
However, the unity of the cause of action against joint tortfeasors at common law was severed in South Australia by the enactment of s 25 of the Wrongs Act 1936 (now superseded by s 5 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001). One of the consequences is that where the conduct of one joint tortfeasor is grounds for an award of aggravated damages, but no grounds exist in respect of the other tortfeasor, then aggravated damages can be awarded against the miscreant tortfeasor alone (see Bateman v Shepherd (1997) Aust. Torts Reports 81-417 at 63,883 and, by analogy with a plea of malice to defeat a plea of qualified privilege, the Full Supreme Court in Cornwall & Ors v Rowan [2004] SASC 384 at paragraphs 449-453). If grounds exist, therefore, an award of aggravated damages may be made against the second defendant alone.
The purpose of aggravated damages is described by Hunt J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) Aust. Torts Reports 80-728 at 69,237
Aggravated damages are more properly called aggravated compensatory damages. They are awarded where either the circumstances of the publication of the matter complained of or the defendant’s conduct then or subsequently make the injury to the plaintiff worse - when the ordinary compensatory damages awarded for the publication itself may be increased. They are not awarded as a separate amount. Aggravated compensatory damages are usually awarded only in relation to the plaintiff’s feelings: McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86 at 104, 107; Cassell & Co v Broome Ltd [1972] AC 1027 at 1071, 1125. They are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff’s reputation as well.
Aggravated damages are compensatory. The purpose of awarding exemplary damages, by way of contrast, is to punish and deter.
The aggravating conduct must be improper, unjustifiable or lacking in bona fides, but it need not be malicious.
It was argued on the plaintiff’s behalf that the following matters constituted aggravating conduct by the second defendant.
1.In making her remarks on the Jeremy Cordeaux program, the second defendant relied upon transcripts of the proceedings against Mr Keogh. She made no enquiries of either the plaintiff or the police as to how the confusion concerning the plaintiff’s name had come about. This was not disputed. It is an aggravating factor, though not a terribly significant one.
2.The second defendant twice wrote to the Commissioner of Police asserting that her remarks on the Jeremy Cordeaux program were true, and asking that the plaintiff be prosecuted. It was an agreed fact as between the plaintiff and the second defendant that the second defendant wrote to the Premier in similar terms. The plaintiff did not seek to pursue this correspondence as separate courses of action, but relied upon them as aggravating conduct in this action. It seems to me that these letters constitute aggravation of a serious nature. The plaintiff gave evidence that he was not specifically aware of the existence of the letter to the Police Commissioner until four to five weeks before trial. However, he feared the wider dissemination of the slander from the time he first became aware of it and it was clear from his evidence that learning of the existence of the letters to the Police Commissioner in part confirmed his fears.
3.The plaintiff, through his solicitors, sought an apology from the second defendant by letter of 8 July 2003. He received no response. The second defendant has never apologised to the plaintiff. Her guardian ad litem offered an apology on her behalf at trial. It was clear from his evidence, however, that he viewed it as a tactical move rather than a genuine expression of remorse. I view the failure to offer a sincere apology as an aggravating factor.
4.The second defendant pleaded justification in her first defence of February 2004 and her amended defence of July 2004. The plea was maintained until the first day of trial. This is clearly an aggravating factor.
5.The second defendant pleaded in her amended defence of 16 July 2004:
10.5Says that prior to the conversation, the Second Defendant had spoken with Graham Archer of Channel 7 who had advised her that the Plaintiff had admitted giving police the name Peter McKenzie shortly following the death of Anna Jane Cheney.

I have set out above that part of Mr Archer’s evidence in which he states that he did not tell the second defendant that the plaintiff had made such an admission to him. I find that the plaintiff did not make such an admission to Mr Archer, and that paragraph 10.5 of the amended defence is false.
I bear in mind the evidence of Dr Hecker with respect to the second defendant’s neurological state, which is set out below. However, it was common ground among the parties that this evidence is not directly relevant to a consideration of compensatory damages. In relation to the question of aggravated damages, it serves to provide a context.
I award aggravated damages against the second defendant in the sum of $12,000.
Exemplary Damages
The plaintiff sought exemplary damages, relying upon the same conduct of the second defendant that founded the claim for aggravated damages.
For the purpose of his claim for exemplary damages, the plaintiff sought to characterise that conduct as:
... conscious wrongdoing in contumelious disregard of another’s rights –
Gray v Motor Accident Commission (1998) 196 CLR 1.
It is difficult in the circumstances to assess the degree to which Ms Armfield was conscious of the wrong she was doing to Dr Fitzgerald. Clearly, he was not her principal target. It may be that her focus upon achieving an outcome favourable to Mr Keogh by means of her campaign was so intense that she simply failed to address her mind to the collateral damage the steps she was taking in that campaign might be doing to others. That damage is, of course, no less real for that.
Dr Hecker gave evidence in respect of the second defendant’s neurological condition. Dr Hecker first saw the second defendant on 30 September 2004. She referred her to a neuro-psychologist. Subsequently, she also arranged for an MRI scan and a SPECT scan. Ultimately, on the basis of the results of those tests together with others, Dr Hecker diagnosed the second defendant as suffering from mild Alzheimer’s disease. Dr Hecker gave evidence that it was evident to her that the second defendant was quite impaired at the time of her first visit to Dr Hecker. Dr Hecker also gave evidence that it was usual in cases of Alzheimer’s disease that the disease would be present and affecting the patient to some extent for some years prior to a diagnosis being sought. In Ms Armfield’s case, Dr Hecker’s view was that it was likely that she had been suffering from Alzheimer’s disease (in the sense of having symptoms detectable on testing) two to four years prior to 30 September 2004. However, as Dr Hecker had not seen her prior to 30 September 2004, she was unable to assess the precise nature and extent of her impairment prior to that date. By March 2005 it was clear to Dr Hecker that Ms Armfield lacked the capacity to take an active part in these proceedings.
It seems to me that, having regard to Ms Armfield’s condition at the present time, an award of exemplary damages for the purpose of deterring her from any future defamation would be pointless. Nor does it seem to me that there is any point in an award of exemplary damages to punish her.
In my view the amount of general damages is sufficient as compensation and as a general deterrent.
Apportionment and Contribution
The principles applicable to apportioning the award of general damages, excluding the aggravated damages awarded against the second defendant alone, as between the first defendant and the second defendant are conveniently set out in Rowan v Cornwall & Ors (No. 7) [2003] SASC 49 (paragraph 16):
16.Section 26 of the Wrongs Act provides that the determination of contribution recoverable from any person shall be the amount the Court finds to be just and equitable, having regard to that person’s responsibility for the damage. When considering what is just and equitable for the purpose of apportioning damages where the plaintiff’s reputation has suffered in consequence of the publication of several defamatory statements, it will be necessary to examine the extent to which the acts of each defendant has caused the damage suffered by the plaintiff. The State defendants relied on the remarks of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-533 and in Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 per Hayne J at 29 with whom the other members of the court agreed. Both those cases concerned apportionment for contributory negligence but the approach I have identified is consistent with the principle expressed in those decisions that, when determining a proper apportionment of responsibility, regard must be had to the relative importance of the acts or the parties in causing the damage.
Section 26 of the Wrongs Act has been repealed and replaced by the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001; and s 6(5) of that Act is in substantially the same terms.
The first defendant sought a complete indemnity from the second defendant. In summary, the first defendant asserted and relied upon the following points:-
1.Ms Armfield sought out the first defendant for the purpose of having it broadcast her defamatory words. She used her status as a legal practitioner to persuade the first defendant to broadcast her. She purported to have a basis for her remarks. She clearly planned her remarks. She then uttered the words in the knowledge that they were being broadcast.
2.The second defendant’s intention in uttering the defamation is irrelevant (EHulton & Co v Jones [1910] AC 20). In any event, the evidence does not establish that she was unable to understand the nature and consequences of her acts.
3.The broadcast was the natural and probable consequence of the second defendant’s publication, which is sufficient to render her responsible for the broadcast (Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 295.
4.The second defendant wanted and intended her words to be broadcast. She adopted the broadcast verbally at the end of it. She subsequently adopted it further with further publications to, for example, the Commissioner of Police.
5.The second defendant’s remarks about the plaintiff were made at the beginning of her broadcast conversation with Mr Cordeaux, when he might reasonably have expected her to go on and support those remarks.
6.Mr Cordeaux queried the defamatory assertion. He did not seek it, nor did he adopt it.
The second defendant relied on these points:-
1.The party causing the widest publication may be seen to have caused the most effect.
2.The first defendant is in the business of broadcasting for profit. The first defendant telephoned the second defendant on the day of the broadcast.
The first and second defendants are joint tortfeasors. I have found, above, that it has not been shown, in the second defendant’s case, that Ms Armfield was not cognisant of the nature of her acts. She was aware, at the time of making the defamatory statement complained of, that she was on air. I place no importance on the fact that it was Ms Peacock who telephoned Ms Armfield on the day of the broadcast; that was merely an administrative matter. Ms Armfield initiated the contact. The broadcast was her idea. As against that, the first defendant provided the means of mass distribution of her slander and failed to use its ability to interrupt the broadcast of a conversation to prevent the defamation going to air. From the conversation between Mr Cordeaux and Ms Armfield on 12 June 2003, the first defendant was on notice that controversial material might be discussed by Ms Armfield on air. The first defendant had the opportunity to enquire further of Ms Armfield and check her material but it failed to do so.
I reject Mr Swan’s argument that the first defendant should be fully indemnified by the second defendant. Having regard to the matters set out above, I consider that the general damages should be apportioned:
60% / 40%
first defendant / second defendant
I will hear the parties with respect to the form of the orders, costs and interest.