Gacic v John Fairfax Publications Pty Ltd
[2013] NSWSC 1920
•19 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920 Hearing dates: 10/12/12; 31/1/13; 1/2/13; 7/3/13 Decision date: 19 December 2013 Jurisdiction: Common Law Before: Hall J Decision: 1. Judgment be entered in favour of the first plaintiff on the basis of an award of damages in the amount of $160,000.
2. Judgment be entered in favour of the second plaintiff on the basis of an award of damages in the amount of $160,000.
3. Judgment be entered in favour of the third plaintiff on the basis of an award of damages in the amount of $160,000.
4. Plaintiffs directed to bring in Short Minutes of Order to give effect to these reasons for judgment.
Catchwords: DEFAMATION - assessment of damages - where decision at first instance overturned by Court of Appeal and matter remitted back for assessment of damages - restaurant review found to be defamatory of three plaintiffs in respect of two different restaurants operated by them - whether findings made at first instance can support plea in mitigation of damages - findings made at first instance as to statements of opinion of restaurant reviewer are not findings of fact - such findings had no notoriety until judgment at first instance delivered - such findings are not evidence of bad reputation of the plaintiffs - whether plaintiffs entitled to aggravated damages - article removed after Court of Appeal judgment but later restored - continued internet publication after Court of Appeal judgment increased harm caused by original publication - such conduct by first defendant was "unjustified" in light of circumstances of case - aggravated damages awarded Legislation Cited: Civil Liability (Non-economic Loss) Order 2010
Civil Liability Act 2002
Defamation Act 1974
Motor Accidents Compensation (Determination of Loss) Order No 3
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Burstein v Times Newspaper Ltd [2001] 1 WLR 579
Carson v John Fairfax & Sons Limited [1993] HCA 31; (1993) 178 CLR 44
Cassall and Co Ltd [1972] AC 1027
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232
Convery v The Irish News Limited [2008] NICA 14
Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675
Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362
Gacic v John Fairfax Publishing Pty Ltd [2009] NSWSC 1403
Goody v Oldhams Press Ltd (1967) 1 QB 333
Gray v Motor Accident Commission (1998) 196 CLR 1
Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182
Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
John Fairfax & Sons v Kelly (1987) 8 NSWLR 131
Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116
Prehn v Royal Bank of Liverpool (1870) LR 5 Ex 92
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rookes v Barnard [1964] AC 1129
Selecta Homes and Building Co Pty Ltd v Advertiser Weekend Publishing Co Pty Ltd (2001) SASC 140
Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398
Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Pty Ltd [1965]-[1966] 117 CLR 118
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58Texts Cited: Gatley on Libel and Slander p 842 para 33.26 Category: Principal judgment Parties: Aleksandra Gacic (First Plaintiff)
Ljiljana Gacic (Second Plaintiff)
Branislav Ciric (Third Plaintiff)
John Fairfax Publications Pty Ltd (First Defendant)
Matthew Evans (Second Defendant)Representation: Counsel:
CA Evatt; R Rasmussen; C Dibb (Plaintiffs)
TD Blackburn SC; D Sibtain (Defendants)
Solicitors:
McKenzie Leamey Solicitors & Barristers (Plaintiffs)
Banki Haddock Fiori (Defendants)
File Number(s): 2004/176936
Judgment
PART 1 - INTRODUCTION
The plaintiffs, Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric ("the plaintiffs") claim damages in respect of a defamatory review published in the Sydney Morning Herald, Good Living section of that paper on 30 September 2003 ("the review").
This judgment is concerned with the assessment of damages in those proceedings.
Mr CA Evatt with Mr R Rasmussen and C Dibb of counsel appeared on behalf of the plaintiffs. Mr Blackburn SC and Mr David Sibtain of counsel appeared on behalf of the two defendants.
It is sufficient, for the purpose of the present case that I set out in summary form the now extensive history of the proceedings.
The proceedings were commenced by way of Statement of Claim on 25 June 2004. The proceedings, insofar as publication in New South Wales is concerned, have been and are to be further determined in this judgment in accordance with the Defamation Act 1974 (the 1974 Act).
The appellants opened an establishment called "Coco Roco" at Sydney's King Street Wharf on 4 September 2003. On Tuesday 30 September 2003 the first respondent published the abovementioned review a copy of which was admitted as Exhibit A in the proceedings.
Coco Roco was a harbourside establishment on two levels with two distinct dining options. It comprised a bistro downstairs called "Roco" and a more expensive restaurant upstairs called "Coco". The third appellant, Branislav Circic, conceived of the concept of Coco Roco in 2002.
The first and second plaintiffs, Aleksandra and Ljiljana Gacic, are sisters. The third plaintiff, Mr Circic is married to Ljiljana Gacic. The plaintiffs established two companies, Coro Enterprises Pty Ltd trading as Coco Roco, and Syd Mirror Pty Ltd. The two companies became, respectively, the owner of the restaurant business and the lessee of the premises from which the restaurants Coco and Roco were operated. The plaintiffs were directors and shareholders of those companies.
In the proceedings, the plaintiffs complained that the restaurant review written by the second defendant, Mr Evans, conveyed the following three imputations which were defamatory of each of them:
(a) The plaintiffs sell unpalatable food at Coco Roco (the "unpalatable food imputation").
(b) The plaintiffs provide some bad service at Coco Roco (the "bad service imputation").
(c) The third plaintiff is incompetent as a restaurant owner because he employed a chef at Coco Roco who makes poor quality food (the "incompetence imputation").
The three imputations conveyed by the review were established by a jury under s 7A of the 1974 Act in earlier proceedings: see John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291; Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675.
Subsequent to the verdict, the proceedings proceeded to a hearing before this Court (Harrison J) to consider the defences pleaded by the defendants and the issue of damages: s 7A(4) of the 1974 Act.
In defence to the publication in New South Wales, the defendants pleaded comment in relation to each imputation. They also sought to establish that the bad service and incompetence imputations were substantially true and were related to a matter or matters of public interest.
They pleaded a defence of contextual truth by pleading each plaintiff's imputation back to each other, and relying on the substantial truth of the bad service and incompetence imputations.
Similar defences (except as to contextual truth in Tasmania) were pleaded to publication in other jurisdictions.
Judgment was delivered on 18 December 2009: Gacic v John Fairfax Publishing Pty Ltd [2009] NSWSC 1403. Harrison J held that the defendants had established a complete defence to the plaintiffs' claims. His Honour stated that in the event that that decision was erroneous, he undertook an assessment of damages, concluding that each plaintiff would have been entitled to general damages in the sum of $80,000. That assessment, however, did not bring into account whether damages would include an allowance for aggravated damages as claimed by the plaintiffs.
The plaintiffs then appealed from his Honour's decision both as to the defences and as to the provisional assessment of damages.
The Court of Appeal of New South Wales (Giles and McColl JJA and Sackville AJA) allowed the appeal with costs and in particular made the following orders:
(i) An order setting aside the orders of Harrison J made on 18 December 2009.
(ii) A verdict was entered in favour of the plaintiffs (the appellants).
(iii) An order that the defendants, as respondents to the appeal, pay the costs of the proceedings before Harrison J.
(iv) An order remitting the matter to the Common Law Division for assessment of damages: Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362.
Accordingly, the hearing in relation to the claim for damages proceeded by reason of the order of the Court of Appeal remitting the matter for assessment of damages.
The hearing was conducted on 10 December 2012, 31 January 2013, 1 February 2013 and 7 March 2013.
As discussed later in this judgment, the parties proceeded upon the basis that the transcript of the evidence in the proceedings heard by Harrison J forms part of the proceedings remitted by the Court of Appeal for the purposes of the damages hearing. At an earlier stage in the hearing, segments of transcript of the evidence given by each of the plaintiffs and other witnesses were separately tendered and marked as follows:
Exhibit B: Transcript of first plaintiff, Aleksandra Gacic
Exhibit L: Transcript of second plaintiff, Ljiljana Gacic
Exhibit K: Transcript of third plaintiff, Branislav Ciric
Subsequently the evidence of the plaintiffs contained in Volume 1 of the Black Appeal Book was tendered in the proceedings, Exhibit T.
Each of the plaintiffs was called to give further evidence upon matters relevant to their respective claims. Evidence was also called in the hearing before me from the following witnesses:
Mr Dean Wright, solicitor
Ms Felicity Tilly
Mr George Georgious
PART 2 - THE REVIEW
I reproduce below the text of the review:
"Crash and burn
When dining on the view is the only recommendation
If a restaurant serves good as well as bad food, do you give it the benefit of the doubt? I wouldn't do that with a three-chef's-hat restaurant so why should I do it here? Especially when more than half the dishes I've tried at Coco Roco are simply unpalatable.
Coco Roco is the swank new eatery at King Street Wharf. The opening was touted as 'Sydney's most glamorous restaurant'. If glamour peaked at about 1985, then perhaps they're right. Something about the polished stainless steel around the open kitchen and the black reflector tiles in the bathroom make me feel I should be wearing a pink shirt and a thin leather tie. Maybe it's just me.
What isn't disputable is that this place has had a $3 million fitout, has views westwards over the water and scored Sarah O'Hare as its official guest at the opening. It has set itself up as a flash restaurant with big-end-of-town prices. Its business card even boasts that 'A new level of dining comes to Sydney's King Street Wharf.' I couldn't agree more.
Coco Roco is actually two restaurants: Coco, the posh place upstairs off Lime Street, and sibling Roco, also smartly fitted out on the foreshore. Forever in pursuit of excellence, we choose the more expensive option.
Expensive is right. Mains skid dizzily from a vegetarian dish at just under $30 and crash over the $50 mark. It's a brave restaurateur who tries that without the goods to back it up.
A degustation of oysters ($28 for six/$40 for 12) arrives as different flavoured bivalves, rather than oysters from various regions.
There's a saffron-infused gin one. There's a seafood foam, which looks like it's been piped on top. The texture is scary and, let's be polite, not to my tastes. The limoncello, however, is worse - flavours jangle like a car crash; all at once it's sickly sweet, overtly alcoholic, slippery, salty and bitter.
Only the lone natural oyster is gloriously free from interference and there's an exquisite verjuice jelly on another.
Next up, the carpaccio of beef ($22) comes with a dreary roast almond paste underneath and far too many yellowing rocket leaves on top. The meat itself is fine, although the parmesan cheese strips taste tired.
Small Queensland scallops ($24) on jagged shells with cauliflower and vanilla nearly work but are uninteresting.
Why anyone would put apricots in a sherry-scented white sauce with a prime rib steak is beyond me. A generous chock of meat comes perfectly rested, medium as ordered. But the halves of apricot are rubbery and tasteless (which is probably a good thing). I scrape the whole wretched garnish to one side. The meat has a good length of flavour and is a damned fine steak, even if it is $52. I can't help but think at this price I could be dining at Rockpool.
On a side dish, three house-made mustards - milk, Guinness and lavender - prove that some things are better left alone.
The other main, roast chicken ($35), is outstandingly dull, which is odd considering it's a Glenloth bird that I usually love.
A few days later, in the interests of impartiality, I'm back. This time it's salad to start ($8), sweetly dressed with honey and balsamic vinegar and topped with fine cress. It's not great but passable, except for a few wilting leaves.
A poached beef fillet ($46) shows, like last visit, that they can cook steak. This time it's medium rare, although the meat is curiously dry on the edges. But the accompanying broth is well below average. It is sticky sweet with port and overcooked potatoes floating in it do it no favours. Oxtail and sweetbread dumplings are a delight, however.
I've never had pork belly that could almost be described as dry. Until tonight. A generous square of pig's paunch ($33) is snuggled into a mass of starchy lentils. The meat is unevenly spiced with Moorish flavours and the lentils are poor. Texturally, it brings to mind the porcine equal of a parched Weetbix.
For dessert, honeycomb cheesecake ($17) has little to recommend it, with its soggy pastry base. Compared with the raspberry and shiraz sorbet, however, it's heaven.
A dismal pyramid of sorbet ($15) jangles the mouth like a gamelon concert. Poached berries underneath are OK, except for what I guessed might have been soggy blackberries.
It could be argued that Coco is still settling in. But apricots in sherry-scented white sauce aren't meant to garnish a rib eye of beef. The menu isn't held back by minor glitches; it's flawed in concept and execution.
In a city where harbourside dining has improved out of sight in recent years, Coco Roco is a bleak spot on the culinary landscape."
The second defendant, Mr Evans, attended at the restaurant, Coco, on 5 September 2003, the day following the opening of the restaurant, and again on Wednesday, 10 September 2003, on which latter date he attended with a companion. He did not enter the Roco bistro. He accordingly did not have any material for comment in relation to Roco. The review published on Tuesday, 30 September 2003, included his impression of both dining experiences at Coco.
The review came to the attention of the plaintiffs on the day of its publication and it is noted by Harrison J in his Honour's judgment:
"When the plaintiffs read the review they were shocked and distressed": at [7].
His Honour dealt with the plaintiffs' respective reactions to the review in a later part of his judgment.
Coco Roco suffered a decline in patronage and ultimately closed permanently in early 2004. An administrator was appointed to both Syd Mirror Pty Ltd and Coro Enterprises Pty Ltd in March 2004. As McColl JA noted in her judgment at [25], Harrison J accepted that each plaintiff had been "very badly affected" by the failure of Coco Roco and that each plaintiff attributed its failure to the matter complained of: at [235]-[236].
PART 3 - THE JUDGMENT OF THE COURT OF APPEAL
The principal judgment in the Court of Appeal was delivered by her Honour McColl JA. Giles JA agreed with the reasons of McColl JA and made additional observations in his Honour's judgment. Sackville AJA agreed generally with the judgment of McColl JA and with the additional observations made by Giles JA at [117].
McColl JA identified the issues on appeal at [52]-[57] of her Honour's judgment.
At [52] her Honour stated:
"The central issue on appeal is whether his Honour erred in his approach to determining whether the imputations, and the defences pleaded in respect of them, should be understood as referring to one restaurant, Coco Roco, or to two separate restaurants, Coco and Roco. The appellants contend that his Honour's approach, of determining that issue as a preliminary factual inquiry, led him into error both in construing the imputations and in assessing the defences."
Her Honour then continued, at [53]:
"In their Amended Notice of Appeal the appellants complained (Ground 1) that his Honour erred in finding that there was only one restaurant, Coco Roco, when he should have found there were two, Coco and Roco (the 'one restaurant ground'). As argued in written and oral submissions, this ground was put on the basis that, in the context of the matter complained of, each imputation was understood to relate to both restaurants, rather than one. The fact of a favourable finding on this ground was reflected in the bulk of the remaining grounds (grounds 2-7) insofar as they complained that as the second respondent only 'experienced' one of those two restaurants, Coco, he could not have held the opinion he expressed about Roco, there could have been no proper material for comment in respect of Roco and nor could any of the imputations be substantially true in relation to it."
As her Honour subsequently noted at [59], the plaintiffs submitted that the finding that "there was relevantly only one restaurant" contaminated his Honour's findings in respect of the defence of comment and substantial truth. They contended that his Honour had erred in considering the material extrinsic to the matter complained of when determining the meaning of the imputations.
Her Honour further noted at [60], that the plaintiffs submitted that the ordinary reasonable reader would have read the references to "Coco Roco" in the matter complained of as conveying its defamatory stings about their conduct in relation to both restaurants.
The preliminary point raised on the appeal depended upon the proposition that each of the imputations constituted each appellant's cause of action against the respondents. If the imputations were to be understood to refer to the two restaurants at Coco Roco then McColl JA observed that the defendants' defences were substantially, if not entirely, compromised because the reviewer never ate at Roco: at [61].
Her Honour then concluded:
"In my view the appellants' contention should be accepted. The matter complained of was replete with references to Coco Roco which makes it apparent, in my view, that it was open to the s 7A jury to conclude that an ordinary reasonable reader would have read the matter complained of as referring to both restaurants": (at [72])
Her Honour identified the matters which supported that conclusion at [73], noting that the review contained an explicit statement that there were two restaurants and that, taken as whole, it was open to the jury to conclude that the review referred to each restaurant at "Coco Roco", not merely to the restaurant "Coco":
"... once the jury found that the imputations were conveyed concerning 'Coco Roco', which expression could be understood as I have explained when regard is had to the matter complained of, the respondents had to establish that their defences ran to both restaurants. They could not do so, and did not seek to do so": (at [75]).
Notwithstanding that the Court of Appeal set aside the orders of Harrison J made on 18 December 2009, entered a verdict for the plaintiffs and remitted the matter "for assessment of damages", the defendants nonetheless sought to rely upon the opinion expressed by Mr Evans as to poor food and service at Coco and findings said to have been made by Harrison J to support the contention that, whilst the plaintiffs would be entitled to something more than "nominal" damages, any assessment by this Court of the damage claimed should be "modest".
As discussed in greater detail below, in support of this contention the defendants placed significant reliance upon two matters. First, that the judgment of Harrison J contained factual findings concerning the food and service at Coco, and which it was said the Court of Appeal did not criticise. Whilst his Honour's orders were set aside, the defendants argued that his claimed "findings" nonetheless support the defendants' plea in mitigation. Second, that the principle of mitigation, as expanded upon in the case law, applies to the circumstances of the present case. The plaintiffs strongly took issue with the defendants' contentions.
The defendants' defence of mitigation requires close consideration of the proposition that evidence adduced in support of the defence of "comment" is available to support the defence of mitigation of damages in the particular circumstances of the present proceedings.
PART 5 - THE DEFENCE OF MITIGATION
(a) The Bases for the Defence
The defendants' submissions on the issue of mitigation of damages relied, inter alia, upon the following matters:
(i) Evidence Available on Mitigation
The facts allegedly found by Harrison J as to the truth of the imputations, the defence of, and the evidence led in support of the defence of comment may be relied upon in mitigation of damages.
(ii) Previous "Findings" Establish "Facts" to be Applied on Mitigation
The "findings" by Harrison J, the defendants argued, establish the "truth of facts" as to both poor quality food served at Coco on the two occasions that Mr Evans dined there and poor service at Coco as encountered or experienced by Mr Evans.
(iii) In the assessment of damages in this case, following upon the remittal of the proceedings by the Court of Appeal, I am, in effect, bound by the "findings" made by Harrison J and I "would not depart from (those) findings ... as to the truth and accuracy of Mr Evans' evidence concerning his experiences at Coco": Defendants' Closing Submissions on Damages, 25 February 2013 at [27] and [35].
It was submitted for the defendants that:
(i) "The Court, in the assessment of damages, takes into account such true facts as are established by the defendants": at [34].
(ii) "Whilst it is for this Court to assess damages, the Court should not disregard the solemn findings of a previous Court as to the evidence of Mr Evans and the experiences that actuated the publication of the matter complained of. The plaintiffs have not advanced any basis upon which this Court would decline to accept Mr Evans' evidence": at [43]
The defendants contended that any damages awarded to the plaintiffs "cannot be great": at [45]. In this respect it was argued that the damage done by "a true review" of poor food served by a restaurateur and some bad service at one of his/her restaurants, "must be substantial": at [45]. Further it was submitted the theoretical assessment of damages by Harrison J at $80,000 for each plaintiff would be reduced by this Court on the assessment of damages ordered by the Court of Appeal "... this Court would reduce that figure to take into account the damage caused by the publication of the true facts concerning the poor food and service at Coco": at [46].
The defendants further submitted that the plaintiffs' complaints, for the purposes of the assessment of damages, "... must be limited to the criticisms imputed inferentially in respect of Roco, a restaurant where the food and service were not critiqued": at [26].
The defendants relied upon a further and separate matter as reducing any award of damages. They contended that the plaintiffs' damages should be reduced on the basis that their actions "caused the defamatory publication": Outline of defendants' submissions before trial at [28]. The defendants sought to support this argument by reference to caselaw authority relevant to the type of case where a plaintiff has "directly provoked the publication" about which he/she complains.
These submissions are considered below.
The focus of the defendants' submissions as presented, developed and repeated throughout the written and oral submissions, was that mitigation of damages principles operate upon "facts" said to be discernible in Mr Evans' article and in "findings of fact" allegedly made by Harrison J.
The Court of Appeal determined that the pleaded imputations having regard to, and only to the review, were as to both the Roco bistro and the Coco restaurant. Although Mr Evans was aware of Roco's existence as one of two restaurants and although he had not experienced the food or service at both he nonetheless wrote the article in terms which the jury must have found conveyed imputations which spoke of both Coco and Roco - the imputations were all as to Coco Roco: [5] per Giles JA. Accordingly, the defendants' defences of substantial truth and comment failed.
The Roco restaurant, which has been referred to as the "sibling" to Coco, was a substantial restaurant or bistro in its own right. It had its own kitchen and staff including its own chef. It was clearly focussed on a different level of dining. It was less formal. It had a large seating capacity which was much greater than that of the Coco restaurant (300 seats as against Coco's 90 seats). The range and style of food, though not described in detail in evidence, was clearly of a different character to that served in the Coco restaurant. The evidence indicates that the Roco restaurant was intended as one that had a quite distinct and different operation and focus to Coco: see judgment of Giles JA at [3]-[5]. The evidence of the plaintiffs was that it was open 7 days a week, lunch and dinner: T 10 December 2012 at 33. However, as indicated above, the Court of Appeal held that the imputations in the review applied to it as well as Coco.
In this way the review subjected both the bistro and the restaurant to substantial and extremely negative criticism in circumstances in which Mr Evans had no experience at all of Roco.
(b) Amendment of the Amended Defence
The defendants, on an intermediate date in the damages hearing, sought and obtained leave to further amend their Amended Defence to plead a defence of mitigation of damages.
The defence of mitigation (para 26 of the Further Amended Defence) became the centrepiece of the defendants' case on damages. Paragraph [26] pleaded that any damage suffered by the plaintiffs should be reduced by reason of the particulars set out in the defendants' Amended Defence in support of the defence of truth in relation to the bad service and incompetence imputations, and the defence of comment in relation to the unpalatable food imputation. In the way it was argued, substantial emphasis was placed upon the statements expressed in the review about Coco and the asserted factual findings of Harrison J as mitigating any award of damages to a low level. The defendants in that respect sought to rely upon both the defamatory article and the evidence of its author, Mr Evans, as to the quality of the food and service at Coco as being evidence of fact, namely, that the food served at Coco on the two occasions Mr Evans dined there was "unpalatable" and that the service was poor or substandard.
Mr Evatt, on behalf of the plaintiffs, strongly submitted that both the review and Mr Evans' evidence in which he expressed his opinion on the Coco food and service, was based on his subjective reactions to, and his assessment of, the food served and the service at Coco. Mr Evatt, on more than one occasion, observed that Mr Blackburn had neither particularised nor identified the "facts" said to support the mitigation defence contained in [26] of the Further Amended Defence. As discussed below, Mr Blackburn at a later stage of the proceedings produced a schedule of evidence setting out the alleged "facts" established in evidence.
The defendants, on 1 February 3013, were formally granted leave to raise and plead mitigation as a defence. In further written submissions for the defendants dated 18 March 2013, the "Schedule of evidence" set out or referred to evidence given by Mr Evans before Harrison J. In particular, it referred to particular aspects of evidence that were critical of the food served and of the claimed poor service. It also set out at [8] what were submitted to have been "findings of fact by Harrison J".
Additionally, it was submitted as set out at [15], that Harrison J "implicitly accepted" aspects of Mr Evans' evidence on the food served to him at Coco.
The defendants' further written submissions also sought to identify the matters Harrison J allegedly accepted as proved facts as to the quality of the food and the standard of the service at Coco.
Mr Evatt strongly argued that the particulars on p 4 of the Amended Defence, being the particulars in support of the defence of truth, did not identify facts at all. In that respect he observed:
"Going to page 4. Your Honour will see in paragraphs (a), (b) and (c) certain facts. (a), (b) and (c) are facts and were found by the Trial Judge and they are not in dispute - (d) and (e) there is no dispute, and it is a fact found by his Honour, that Matthew Evans visited Coco on 5 and 10 September. They are sufficient facts on which to base a defence of comment.
Your Honour will appreciate that. The facts are that this was a restaurant owned by the plaintiffs, and Mr Evans ate there two times. They are the underlying facts. The rest of the review or criticism is Mr Evans' comments about the food he tasted and about the layout and appointment of the restaurant. They are his comments. He comments on the food. They are not facts, and could never be facts. I don't want to confuse matters." (T 197:8-19).
Mr Evatt later submitted:
"Now, looking at their defence, because of the truth of the facts and matters, they are not facts and matters, they are not true, they are Mr Evans' opinions. But that is not what they mean, anyhow. That is not what Mr Blackburn has been going on about for two to three days. What they are submitting to the court is that the text, and my friend read them this morning, do relate to facts and matters which are true, which they don't. But his main point is that Harrison J made findings of fact by which your Honour is bound, and if your Honour does not follow his findings of fact, then it is an abuse of process and you are subject to estoppel": (T 199:45-200:3).
...
"EVATT: As a defence to the second and third imputations that each plaintiff provided some bad service and that each plaintiff was incompetent by employing a chef that made poor quality food. So, his Honour never embarked on an inquiry or made no determination as to the truth of the imputation they served unpalatable food. It was never a defence.
HIS HONOUR: Then, in the way in which the trial was conducted by Harrison J, was the approach taken by your clients to seek or not to go into disputing Mr Evans' evidence on discrete aspects, such as the salad, et cetera, the different aspects of food, and take a different approach to making out their claim in what was the way in which the case was conducted, having regard to the defence that is reached in particular?
EVATT: The way in which the case was fought, the plaintiffs said, in answer to the defence of comment to unpalatable food, the plaintiffs and their witnesses all gave evidence that the food was first class, fresh and in good condition, and, therefore, you there could be no comment to the contrary": (T 200:38-201:4).
...
"EVATT: The point is, had there been a defence of truth to unpalatable food, and with those particulars supplied, then, obviously, every one would have to be traversed. But there was no defence. It was only comment on the food": (T201:38-40).
Mr Evatt's submission accordingly was that the Amended Defence did not particularise or rely upon findings of fact about the quality of the food or service which the defendants contended I was bound by: T 203:5-10. He submitted that the "facts and matters" referred to on pages 4, 6, 7 and 8 of the Amended Defence were pleaded to support the grounds of the defence (and there was no pleading of truth to the imputation that each plaintiff sold unpalatable food at Coco): T 196:30-35, T 203:10-20. The grounds of defence, Mr Evatt argued, related:
"... to the tastes of Mr Evans, his opinions, what he considers and it is just rephrasing but in a bit more detail, what Mr Evans wrote in the article and has nothing to do with any findings of fact by Justice Harrison. So, therefore, as there is no mitigation defence before your Honour, pleading facts found by Justice Harrison and setting out with precision what those facts are, your Honour should not mitigate the damages. Now. I have made that point. I am not going to make it again. In fact I raised that point on 1 February." (T 203:14-21).
Mr Evatt submitted that Harrison J had directed his attention to Mr Evans' opinions, being the opinions of a food critic who had expressed them to readers concerning the meals he consumed at the Coco restaurant and in relation to which the defendants had invoked the defence of comment much the same as found in cases concerned with criticisms and reviews in other areas such as architecture, books etc. The reader, Mr Evatt submitted, is taken to understand the review to be expressing Mr Evans' opinion: T 203:22-33. I will return to the parties' submissions on this aspect below.
The defendants also contended that the present case "falls squarely within the principles expounded in Pamplin and Burstein": Defendants' Closing Submissions on Damages at [30]. For this purpose reliance was placed upon the principles discussed and enunciated by the Court of Appeal in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 per Neill LJ at 119-120 and in Burstein v Times Newspaper Ltd [2001] 1 WLR 579 per May LJ at [18]-[22], [36].
As later discussed, I have concluded that the principles in those cases do not support the defendants' defence of mitigation. The defences and factual circumstances in each of those cases are analysed below. So also are the principle(s) to be derived from them and the circumstances in which they may have application.
PART 6 - MITIGATION PRINCIPLES
(i) "Facts" and "Findings"
The defendants' submissions advanced a number of propositions to support their mitigation of damages defence. These included:
- That Harrison J had made factual findings as to Mr Evans' low opinion of the food consumed at the restaurant Coco;
- Those "findings" regarding the food at Coco having been made, the published conclusions of Mr Evans must have done damage to the plaintiffs as restaurateurs, but justifiably. What remains of their reputation as restaurateurs is limited: Defendants' Further Submissions, 30 January 2013 at 1(a) and 1(c);
- The review published to each reader "true facts" about Mr Evans' dining experience at the "fine dining" restaurant, Coco: Defendants' Closing Submissions on Damages, 25 February 2013 at [3]. It was there again stated: "The publication of his experiences at Coco must have done significant damage to the reputation of the plaintiffs". This statement was followed by the submission: "In the assessment of damages, the Court would have regard to that fact, and would discount the damages to be awarded accordingly."
- The critical issue is whether Mr Evans' "observations" as an experienced food reviewer were correct. There was no challenge to his credit. Accordingly, they must be accepted: Defendants' Closing Submissions on Damages, 25 February 2013 at [17];
- The review on its face is explicitly a review of "the reviewer's experiences" at Coco. The context, and explicit content of the review, informs the assessment of damages: Defendants' Closing Submissions on Damages at [24].
The defendants' contention associated with or based on the above propositions as developed in the defendants' submission may be summarised as follows: First, the review, though defaming the plaintiffs, established "facts" as to the quality of the food and service at Coco. The publication of the defamatory review by the defendants of those "facts" must have significantly damaged the plaintiffs' reputations. Second, Harrison J's "findings" established "facts" concerning both the quality of the food served at Coco and the service at that restaurant. Those "facts" and "findings" are to be taken into account as they diminish the plaintiffs' claims for damages.
In relation to the asserted "facts" and "findings", it was submitted by Mr Blackburn that I should not make findings contrary to those made by Harrison J. They were effectively said to constitute post-publication findings in legal proceedings that operated to diminish the entitlement of the plaintiffs to damages.
These matters relied upon by the defendants, if valid, potentially at least have significant consequences to the assessment of damages in these proceedings.
(ii) Three "Issues"
The discussion below addresses the following issues:
(1) Whether any "findings" of Harrison J may be considered as post-judgment findings of a court that relate to reputation;
(2) Whether the statements of Mr Evans in the review, on the quality of the food served at Coco and as to the service, were statements of fact or of opinion about those matters;
(3) Whether the "findings" made by Harrison J, however characterised, may be regarded as constituting post-publication findings that diminish the plaintiffs' reputations.
Discussion
I do not accept as valid the defendants' line of argument that Mr Evans' opinions expressed in the review proved "facts" as the defendants contend, nor that Harrison J made "findings" of fact or "true facts" concerning the quality of the food served to Mr Evans or as to the service he experienced or observed on the two occasions that he dined at the Coco restaurant.
The defendants submitted that whilst liability in respect of each and all the pleaded imputations has been determined by the Court of Appeal in favour of the three plaintiffs, on the remittal of the proceedings I should award damages at a low level by reason of the statements as to the food and service at Coco in the defamatory article itself and by reason of what are said to be "findings" of fact by Harrison J. The review of the Coco restaurant, notwithstanding its defamatory nature, was relied upon by the defendants as having had a significant and adverse public impact upon the plaintiffs' reputation as restaurateurs to the extent that its effect upon them was to "devastate" their reputation. Such a devastating effect, the defendants contended, in effect, operated or worked in their favour in the assessment of damages.
The defendants' submission in practical terms rests upon an assumption. It is that, notwithstanding that the review written by the second defendant was defamatory as the Court of Appeal determined, in the assessment of the damages for the harm it occasioned to each of the three plaintiffs, the defendants nonetheless should have the benefit, in terms of mitigation, of the fact that the review "devastate(d)" their reputations.
The validity of this unusual line of argument was disputed by the plaintiffs. In that respect it was submitted that:
(1) Any findings made by Harrison J, being "findings" in the very proceedings in which the plaintiffs claim damages for harm to and vindication of their respective reputations, are not evidence in the present proceedings. Further, such "findings" had no notoriety until his Honour's judgment was delivered;
(2) In any event, the statements contained in the review were not statements of fact. They are/were statements of opinion;
(3) Further, there were no "findings" of fact made by Harrison J in relation to the article on the quality of the food or the service based on his two attendances at the Coco restaurant.
The above three points are discussed below.
I have concluded that Harrison J did not make findings of fact as contended by the defendants. However, even if I were wrong in that conclusion, any such findings could not constitute a basis for the defendants' mitigation defence.
(i) Whether "Findings" Operate as Post-Judgment Findings
The "findings" of Harrison J as to the quality of the food and the service at the Coco restaurant, if they be as such, were made on 18 December 2009, the date of his Honour's judgment, that is a little over six years after the date of publication of the review.
The defendants' submissions raise the question as to whether they are or can be taken as establishing facts adverse to the plaintiffs' reputations which adversely affected their reputations. In that regard there is an issue as to whether "findings" in the very proceedings in which the plaintiffs claim damages occupy the same position as post-publication findings in a judgment in other proceedings that impact upon a plaintiff's reputation. In the circumstances of the present proceedings, in my opinion, the asserted findings made by Harrison J cannot and do not operate in that way. In this respect it is necessary to consider the relevant principles as to the admissibility of post-publication evidence on the issue of a plaintiff's reputation.
Firstly, of course, even if it could be said that Harrison J made factual findings as to the quality of the food and service at Coco, any factual "findings" made by his Honour are not "evidence" in the damages hearing. Secondly, being "findings" said to be found in his Honour's judgment of 18 December 2009, they had no prior existence let alone any notoriety prior to that date.
In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 an issue arose concerning findings in the proceedings in which the plaintiff was claiming damages, namely adverse trial findings. In that case, the Court (Beazley JA, as her Honour then was, together with Giles and Santow JJA) observed at [1396]:
"While it is not necessary to come to a concluded view, it is by no means clear that the appellant could have relied on any findings Levine J might make adverse to the respondent as going to his reputation. On the cases on mitigation of damages because the plaintiff has a bad reputation, findings in a judgment may go to the plaintiff's reputation, including where the judgment post-dates the publication of the defamatory matter. But it is necessary to see why that is so, and to ask whether findings in the very proceedings in which the plaintiff claims damages are in the same position."
Their Honours in that case examined the general issue as to the admissibility and relevance of findings made in a judgment concerning a plaintiff's reputation in defamation proceedings that post-dates publication of the defamatory matter. That examination included consideration of convictions for criminal offences as providing evidence of bad reputation (at [1397]-[1402], and the judgments in Goody v Oldhams Press Ltd (1967) 1 QB 333).
As to the position where a judgment post-dates the publication of the defamatory matter the Court observed:
"Evidence of events going to diminish reputation occurring after the publication of the defamatory matter can be given in mitigation of damages": (at [1403]).
In relation to the judgment in Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 (Gillard J) (a case of a plaintiff's post-publication convictions on criminal charges that could be taken into account in mitigation of damage) their Honours in Marsden examined the reasoning in that case and whether it provided support for the proposition that consideration should be given to findings in the proceedings in which the plaintiff claims damages for harm to and vindication of his reputation.
The Court there stated that the reasoning in Middendorp did not apply for the following reasons:
- The findings were not evidence in the proceedings;
- The nature of the issues in the proceedings;
- The absence of an opportunity for the plaintiff to address whether or to what extent the findings affect his/her reputation.
The Court stated at [1406]-[1408]:
"The reasoning in Middendorp Electric Co Pty Ltd v Sonneveld might support regard to findings in the proceedings in which the plaintiff claims damages for harm to and vindication of his reputation. To adapt what Gillard J said, it might be thought incongruous to award substantial damages to a plaintiff whose reputation, by reason of the findings of the trial judge, has been destroyed at the time the judgment is pronounced. The Court is telling the world the plaintiff has a good reputation at the date of judgment, yet the truth is that he has no reputation.
But the situations are different. Courts act on evidence, and the court's findings are not themselves evidence in the proceedings - they are, of course, not known until judgment is delivered. The Goody v Odhams Press Ltd public knowledge can not apply, and the notoriety of the unknown findings and their effect in fact on the plaintiff's reputation can not be an issue in the proceedings. Thus there is not true incongruity in a court awarding damages on the basis of a good reputation but making findings actual or notional publication of which may (or may not) be detrimental to the plaintiff's reputation, since the court can not properly pay regard to the effect of its findings on the plaintiff's reputation.
That courts act on evidence, and not otherwise, is fundamental to our legal system. It would be undesirable that a plaintiff claiming damages for defamation should have taken into account against him findings which are not known until judgment is given, without the opportunity to address whether or to what extent the findings do affect his reputation. Repeating that it is not necessary to come to a concluded view, as at present advised we would not accept the entitlement underlying the appellant's submission."
In Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335, McColl JA (with whom Spigelman CJ, Beazley JA (as her Honour then was), McClellan CJ at CL and Bergin CJ in Eq agreeing) whilst addressing the issue of adverse trial findings, noted that in Marsden it had not been necessary for the Court of Appeal to come to a concluded view: at [250].
As McColl JA noted, the observations in Marsden appeared to relate more to the admissibility of the adverse trial findings made in those proceedings as distinct from "the Steele-Smith adverse findings". The latter was a reference to adverse findings in the judgment of Palmer J in another case, Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398. Her Honour concluded that Marsden supported the proposition that "findings which are in the public domain - even if made post-publication, may be admissible": at [253]. Accordingly, nothing said by her Honour was contrary to the Court's observations in Marsden as to the position discussed in the latter case as to adverse findings made in the very proceedings in which a plaintiff was claiming damages for defamation.
Post-publication "findings" of the kind said by the defendants to have been made by Harrison J do not fall within the category of cases involving evidence of events going to diminish reputation occurring after the publication of the defamatory matters. That category may, of course, include, by way of example, a plaintiff's post-publication conviction on criminal charges proved in mitigation of damages for defamation. Similarly, findings in other or unrelated civil litigation made in open court may, as discussed above, be admitted as evidence of bad reputation: Goody v Oldhams Press Ltd (1967) 1 QB 333; Amalgamated Television Services Pty Ltd v Marsden at [1402]. However, the alleged findings of Harrison J relied upon by the defendants are not in the last-mentioned categories of case and were not equivalent to findings given notoriety by a judgment of another court in unrelated proceedings.
The alleged findings of fact made by Harrison J made many years after the publication, were not evidence of bad reputation of the plaintiffs and as discussed below were not, in my opinion, factual findings. Harrison J was required to assess damages. He did so as at 18 December 2009, but only on what might be characterised as a provisional basis, given his Honours findings in relation to the defences. The proceedings were remitted by the Court of Appeal for the purpose of determining appropriate awards of damages to each of the plaintiffs being awards that ought to have been determined as at 18 December 2009. The alleged findings of Harrison J cannot now be used to diminish the plaintiffs' reputations as such alleged findings occurred after publication of the defamatory matter and in a judgment in the present proceedings wherein the orders made were set aside by the Court of Appeal. They do not constitute evidence going to mitigation for the reasons stated by Beazley JA, as her Honour then was, in Marsden, supra.
(ii) Facts v Opinion
I turn to the issue as to the nature of the statements in the review and the nature of the findings made by Harrison J.
There is, of course, a fundamental distinction between statements which refer to facts as objective facts and statements which constitute expressions of opinion (or "comment"). The latter include statements in the nature of subjective deductions or assessments of factual matters in accordance with the reactions or perception or appreciation of a writer.
Accordingly, in the present proceedings it is necessary to consider Mr Evans' evidence in relation to (i) the quality of the food, (ii) the service at the Coco restaurant, and (iii) the issue of "findings" by Harrison J, specifically, whether they deal with matters of fact or of opinion?
In Convery v The Irish News Limited [2008] NICA 14 the Court of Appeal in Northern Ireland (Kerr LCJ, Campbell LJ and Gervan LJ) considered a case involving a restaurant owner who claimed damages for defamation in relation to a restaurant review in the "weekend gourmet" section of the defendant's newspaper, the Irish News. The article was critical of the ambience, the food and service of the restaurant known as "Goodfellas" in West Belfast. A jury returned a verdict in favour of the plaintiff for £25,000 damages. The newspaper appealed the decision.
The defendant's primary defence was that the article represented fair comment on a matter of public interest. Alternatively, it pleaded insofar as the statements in the review consisted of fact rather than comment, that they were true - a defence of justification.
The particulars on which comment was based were extensive. As to the beverage served they included allegations that it was flat, warm and watery. In relation to the food, the defendant asserted that the garnishes to the food were poor, allegations were made as to the appearance and taste of certain food items (eg squid rings), to an excessively sweet sauce said to have been a poor accompaniment with savoury food, and to other "unattractive" looking food (eg seafood), greasy, undercooked chips, and vegetables asserted as having been frozen etc.
In broad terms the particulars were a paraphrase of the article. They contained virtually all the factual material from the original review, much of which it was held "might normally be regarded as comment": per Kerr LCJ at [10]. As to what had been contended as amounting to disputed categories of fact (which included such matters going to the appearance or taste or food, poor accompaniments etc) Kerr LCJ also observed:
"[14] Although these were described as disputed matters of fact, it appears to me that many were plainly comment ..."
The Chief Justice noted that in relation to observations in the review article such as the poor beverage being described as "warm", "watery" or "flat", "... none of such qualities can be measured as an objective fact". Kerr LCJ also observed that many matters referred to in the article were either entirely matters of opinion and comment or at least arguably so: at [14].
Kerr LCJ further observed that the defendant had identified various statements in the article as facts "when they were plainly comment" at [15] and that comment may include inferences drawn from facts as well as opinions: at [19].
At [31], the Chief Justice stated:
"Of greater consequence, however, was the judge's acceptance that all of this material was factual in nature. In fairness to him, it had been portrayed by the defendant as such but, as I have already observed, much of it was plainly comment and other statements might reasonably have been regarded as opinions or inferences drawn from facts rather than unvarnished imputations of fact. Thus, for example, the statements that the reviewers were happy to order cola but did not enjoy it; that the cola was flat, warm and watery; that the squid rings were translucent grey in appearance; that they did not taste like squid; that the starters were of poor quality; that the sauce on the chicken Marsala was very sweet and a bad accompaniment for the savoury food; that the spaghetti dish had overcooked pasta, a lot of sauce and unattractive looking seafood in the sauce; that the reviewers did not enjoy their main course; that the chips were pale, greasy and undercooked; and that the reviewers were unimpressed by the poor standard of their dining experience were all matters of comment and not statements of fact. They should have been identified as such by the judge and he should have directed the jury that they should so regard them."
In the same case, Campbell LJ referred to a jury's task of determining whether statements were comment or whether they constituted allegations of fact. That determination was then applied to the article written by the writer who visited the restaurant, tasted the food and drink served to her. Campbell LJ's observations made upon the restaurant review are instructive insofar as they illustrate the importance of differentiating between and having due regard to what is properly regarded as subjective evaluation and what are matters of fact:
"[48] The judge gave the jury guidance on distinguishing comment from fact and used as an example the observation that the cola 'was flat, warm and watery, and can be sure it was on tap.' He suggested to them that the writer was stating as a fact that the cola was physically flat, warm and water, and her opinion based on that fact was that you can be sure it was on tap. In my view in the context of a review the entire description of the cola as being 'flat, warm and water, you can be sure it was on tap' is not fact but the reviewer's value judgment of it. Nor do I agree with the judge that when the reviewers said of the chicken marsala 'The meat itself looked fine, but it was coated in a sickly saccharine sauce that clashed horribly with the savoury food' the latter remark was fact. Other diners may not have agreed about the sauce but this was their opinion. Similarly the 'assertion that the vegetables were unmistakably fresh from the freezer...' was an expression of opinion."
Girvan LJ in the same case similarly addressed the differentiation of fact and comment. Reference was made to the trial judge's summing up which had been criticised as having the potential to mislead the jury in carrying out the exercise of determining which were "true statements of fact" and which were comment. The criticism was based on there being an essential difference between a statement of objective fact or a true statement of fact and what amounted to evaluative or subjective assessments. Moreover, Girvan LJ noted that a restaurant reviewer in relation to the latter is providing his or her reactions to what he/she found according to that person's taste, namely an evaluative assessment based, as in that case, on the reviewer's reactions: at [53].
In these respects it was observed:
"I accept the thrust of counsel's criticism of the summing up in this regard. The judge's direction failed to point out to the jury that the statement that the coke was flat, warm and watery was an evaluative assessment made by the writers arising from their experience of drinking coke which appeared to the drinker to be flat, warm and watery. The underlying fact was that the drinker had consumed the coke and had made a subjective assessment of it, it, being a fact that she had made such an assessment. Some one else disliking ice cold drinks may have found the coke sufficiently effervescent and of a pleasing room temperature. In relation to the chicken Marsala dish the judge suggested to the jury that the statement that the chicken was inedible was a statement of fact. Further, he suggested that the statement that the sauce with it was sickly saccharine sweet and clashed horribly with the meat was a statement of fact, going on to say 'so there you have a fact, it actually comes after the comment here, but nevertheless the comment is there and the fact upon which it was based is there.' This direction is confusing and gives insufficient guidance to the jury for their task. In relation to the statements in relation to the chicken dish the underlying facts were (a) that the writer ate the chicken; (b) that her reaction was that she found it inedible to her taste, an evaluative assessment based on her having a reaction to the taste of the dish; (c) that the meat was coated in a sweet sauce; and (d) that her reaction to that sauce was to find it sickly and saccharine sweet and that in her opinion it clashed badly with the meat. It was for the jury to decide whether she truly ate the dish, whether she had the reaction she described and whether she honestly formed the evaluative opinion expressed in the article": (at [53]).
The defendants' submissions in the present proceedings, as noted above, relied heavily upon the proposition that Harrison J made a number of factual findings in relation to the quality of food and the quality of service on the two occasions Mr Evans dined at the Coco restaurant.
As I have noted above, Mr Evatt, on behalf of the plaintiffs, strongly disputed the proposition advanced by Mr Blackburn SC that any findings expressed by Harrison J could or should be considered to constitute findings of fact. Mr Evatt submitted that the asserted "findings" made by Harrison J could only concern matters of opinion, not fact. For the reasons discussed below, and consistent with the approach and analysis undertaking in Convery, supra, I consider that Mr Evatt's submissions are correct and should be accepted.
That conclusion is a sufficient answer to the defendants' abovementioned submissions on mitigation of damages. However, notwithstanding my conclusion in that respect, I will proceed to examine the decisions in Pamplin and Burstein for the purpose of identifying both the juridical basis for the mitigation of damages principle in defamation proceedings and the circumstances that determine its scope and application.
Evidence that is admissible in reduction of damages may be admitted under a number of headings: Gatley on Libel and Slander p 842 para 33.26. One such heading is evidence properly before the court on some other issue. The decisions in Pamplin and Burstein, inter alia, addressed such evidence.
Pamplin v Express Newspaper Ltd [1988] 1 WLR 116
The plaintiff sued for damages in relation to an article published in the "Sunday Express". By way of background the plaintiff had been concerned that persons who could claim diplomatic immunity were able to avoid paying parking fines by the simple expedient of ignoring summons they may receive. He considered that to have been a loophole in the law. He decided to take steps to expose the "loophole" by arranging for his car to be registered in the name of his young son, then aged four or five.
His plan worked for a while with parking offence tickets being safely ignored.
An article published in the Sunday Express dealt with the car registration scheme and another similar scheme devised by the plaintiff whereby his son became the owner of a family television set. The article sued upon contained words, amongst others.
"Spiv
There maybe a few people who actually applaud Mr Pamplin's sleazy little ways of avoiding his legal responsibilities ..."
The matters to which attention has been drawn in the discussion above in relation to the mitigation defence, are also relevant on the present issue. The submission on "provocation" or however it might be characterised, was put upon the basis that the food "was unpalatable", the implication or assumption being that, as a fact, that had been determined objectively by Mr Evans when in fact it had not. For reasons earlier stated, I do not consider that the submissions on those matters made on behalf of the defendants are valid as Mr Evans' statements in the review and in his evidence expressed his subjective opinions, based upon his personal reactions and assessment.
There is, in my opinion, no basis for stating that the plaintiffs "provoked" the defamatory publication or encouraged or caused it to occur. There is, in my assessment, no factual basis available for a submission of this nature. The various tests discussed in Burstein, supra, at [24]-[27] do not apply on the evidence in the present proceedings nor in my opinion, has it been demonstrated in the defendants' submissions how or on what basis those tests could be satisfied.
There was no provocative conduct that was causally connected with the publication in this case: Burstein at [24], [27]. In Burstein it was determined that the claimant's conduct was not "causally connected" with the defamatory publication. Nothing that the plaintiff there had said or done had provoked the newspaper to publish the words complained of (at p 590). The defendants in the present proceedings had, not sought to establish by evidence or otherwise that the review was "directly provoked" by the plaintiff's conduct in the sense discussed in Burstein at 590 or in any true causal sense arose due to any such conduct.
(b) Aggravated Damages
The principles concerning an award of aggravated damages in a defamation action are well established. They include the following:
(i) That in the assessment of damages a court may look at the whole conduct of a defendant, that is from the time of publication of the defamatory matter to the time of a judgment or verdict in favour of a plaintiff.
(ii) The defendant's conduct may provide a basis for an award of aggravated compensatory damages in circumstances where there has been a lack of bona fides in the defendant's conduct, or if the defendant's conduct was "improper" or "unjustifiable": Triggell v Pheeney (1951) 82 CLR 497, 513-514.
(iii) Aggravated damages compensate a plaintiff for harm that has been exacerbated by a defendant's conduct in publishing the defamatory matter or by subsequent conduct: see Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474, 496; Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 at [31].
(iv) The conduct of a defendant that aggravates a plaintiff's damages need not be malicious.
(v) An award of aggravated damages is not limited to injury or hurt to a plaintiff's feelings: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J. The aggravating conduct may, in some cases, increase the reputational damage suffered (as distinct from compensation for hurt or injured feelings).
In the course of his oral submissions, Mr Blackburn submitted that the first defendant's conduct in placing the article on the Sydney Morning Herald website (and continuing its publication on that website) was not unjustifiable being an article that the first defendant had published and it is "... in the business of publishing newspaper articles": T 223:40-46.
In circumstances not explained in evidence, the article was removed from the website following the judgment of the Court of Appeal but was then later restored and has remained on the internet. This conduct by the first defendant occurs in the overall context of the now prolonged litigation in which the plaintiffs were ultimately successful in establishing the review as having defamed each of them.
It was, of course, open to the first defendant to call evidence, if there was evidence available, to meet the claim for aggravated damages with a view to justifying its conduct in giving internet publicity to material which the Court of Appeal held was defamatory. It did not, of course, do so.
I have concluded that the conduct of the first defendant in placing the defamatory article on the internet constitutes unjustifiable conduct in accordance with the principles discussed above. The evidence called in the plaintiffs' cases, in my assessment, established that such conduct has increased the damage caused to each plaintiff by the original publication. As has been observed:
"... there may be circumstances which cause the further publication to increase the damage caused by the original publication rather than to cause a new injury to the plaintiff. On the other hand, a subsequent publication may cause a new injury to the plaintiff's reputation. In the former case the subsequent publication will aggravate the damage caused by the publication sued upon. In the latter case the subsequent publication causes a new injury to the plaintiff's reputation and gives rise to a new cause of action": Australian Medical Association (WA) Inc v McEvoy (No 2) [2012] WASC 416 at [25] per Le Miere J.
An award of aggravated damages is warranted where it has been established that the publication has been lacking in bona fides, is improper or unjustifiable in accordance with the well-known dicta in Triggell v Pheeney (1951) 82 CLR 497, 514. In the application of that test the words employed by the High Court in relation to it are disjunctive and "unjustifiable" carries a meaning that does not necessarily include impropriety.
In these proceedings the evidence establishes that the article was on the Sydney Morning Herald website from 30 September 2003 up until the Court of Appeal judgment on 30 June 2006 and it was taken off the website on the later date. It was restored to the SMH website on the date of the High Court's judgment (14 June 2007) and it has remained there. The evidence, which I accept, is to the effect that from time to time persons (friends and acquaintances) within Australia and overseas have contacted the plaintiffs to point out that the article is on the internet and in some instances have sought clarification about the publication having regard to what they had been told, namely that the plaintiffs had won the litigation. The fact of the internet publication itself, the plaintiffs' awareness of its continued publication on the internet over a considerable period and the need to set about explaining the position has, I find, caused each of the plaintiffs significant upset and distress.
Publication by internet website is, of course, all pervasive not being confined or restricted by territorial boundaries and is readily accessible to anyone through the use of various search engines. I am satisfied that the ongoing publication by this medium, that is its availability to anyone (including friends and relatives of the plaintiffs), has increased the harm caused by the original publication.
The contextual background against which the continued publication on the internet of the review has occurred is that these proceedings, originally commenced in 2004, and ongoing over years, have unfortunately for all parties had a very protracted and no doubt expensive history both at first instance and at appellate levels. The continued internet publication is another ongoing aspect that has resulted in the exacerbating effects to which I have referred.
(c) Exemplary Damages
The plaintiffs claim exemplary damages in respect of the publication of the defamatory material in other States of Australia (that is excluding New South Wales) and Commonwealth Territories.
In relation to exemplary damages Mr Evatt acknowledged that such damages in defamation cases are very hard to obtain with respect to publication in the other States and Territories: T 208:1-5. He acknowledged that, in the present proceedings, the basis for an award of exemplary damages could only be founded on the fact of the continued publication on the internet: T 208:5-12.
In the Plaintiffs' Written Submissions in Reply dated 1 March 2013, it was submitted that the continued publication on the internet warrants exemplary damages. In that respect it was contended that the amount of exemplary damages awarded should serve as a warning to the first defendant that it will be punished financially "... if they won't take down [the] matter which the Court of Appeal and the High Court have established [was] wrong" at [32].
In the Defendants' Closing Submissions on Damages dated 25 February 2013 it was submitted for the defendants that the claim for exemplary damages must be rejected with reliance being placed upon the reasons advanced in oral argument.
In the Defendants' Written Submissions dated 30 January 2013, it was submitted for the defendants that the court would have to conclude that the defendants had engaged in contumelious disregard of the plaintiffs' rights. In that respect it was contended that there was no evidence to support such a conclusion. In support, reference was made to the evidence said to establish that Mr Evans did not intend to convey anything about Roco and expressly informed the reader that he had not dined there. There was no evidence, it was further submitted, that conveyed some ulterior motive, contumeliously disregarding the interests of the plaintiff. Carelessness, so far as statements that could apply to Roco, it was argued, is not coextensive with a contumelious disregard of the plaintiffs' rights: at [40].
As noted above, it was also submitted for the defendants that there was no evidence that the review had been given any prominence, or that it could be discovered otherwise than as a consequence of diligent efforts to search for them.
In this latter respect, it was submitted for the plaintiffs that the latter proposition was contradicted by the unchallenged evidence of the plaintiff, Aleksandra Gacic, as to the ease with which the typing in of key words brings up the publication: Plaintiffs' Submissions in Reply at [33]. It was further submitted for the plaintiffs that it was unfair to them for the defendants to retain the publications on their website: at [34].
In Uren v John Fairfax & Sons Pty Ltd [1965]-[1966] 117 CLR 118 at 149, Windeyer J stated:
"... first, it is necessary to notice that, whatever be the position in torts other than defamation, the distinction between aggravated and exemplary damages is not easy to make in defamation, either historically or analytically; and in practice it is hard to preserve. The formal distinction is, I take it, that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence."
In Uren, Windeyer J at p 153 also stated that the decision in Rookes v Barnard [1964] AC 1129 emphasised that exemplary damages must always be based on something more substantial than a jury's mere disapproval of the conduct of a defendant. His Honour further observed:
"... the decision makes clear too, if it was ever in any doubt, that all matters that may aggravate compensatory damages do not of themselves justify the addition or inclusion of the further purely punitive element ... The wrong must be one of a kind for which exemplary damages might be given; and the facts of the particular case must be such that exemplary damages could properly be given ... There must ... be evidence of some positive misconduct to justify a verdict for exemplary damages. There must be evidence on which the jury could find that there was, at least, a 'conscious wrongdoing in contumelious disregard of another's rights'. I select that particular phrase out of many, because it has been used more than once in this Court ..."
In Gray v Motor Accident Commission (1998) 196 CLR 1 at 6, the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed that:
"Exemplary damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their reward. Something more must be found. Although they are awarded rarely, they have been awarded in very different kinds of cases: ranging from abuse of governmental power ... through defamation cases of the kind considered in Uren, to assault cases ..."
Accordingly, it is now well established that the award of exemplary damages is an exceptional remedy in cases of conscious wrongdoing in contumelious disregard of a plaintiff's rights.
In the present proceedings, the first defendant's actions in reinstating the article on its internet website, and its failure, and on some evidence its refusal to remove it, is conduct that could be said to warrant disapproval and even censure.
That said, it is, however, necessary to take into account as a modifying factor that the review on the first defendant's website is not the equivalent of widespread publication by a print media as it requires specific search terms to be employed to activate publication of it. That does not, of course, wholly address the possibility of relatives, friends and others with some knowledge of the defamatory review, from actively searching for the defamatory material as the evidence indicates has been done from time to time.
Taking into account all matters associated with the internet publication and the matters to which I have referred above, I do not consider that this is a case in which it can be said that the required form of conscious wrongdoing that is necessary has been established. As earlier stated, the continued presence of the review on the SMH website is a matter, in my opinion, properly to be taken into account in determining aggravated damages.
In the circumstances, I determine the amount of damages that should be awarded to the plaintiffs, including aggravated damages, as follows:
(a) In respect of the first plaintiff, Aleksandra Gacic, the amount of $160,000.
(b) In respect of the second plaintiff, Ljiljana Gacic, the amount of $160,000.
(c) In respect of the third plaintiff, Branislav Ciric, the amount of $160,000.
Orders
I make the following orders:
1. That judgment be entered in favour of the first plaintiff on the basis of an award of damages in the amount of $160,000.
2. That judgment be entered in favour of the second plaintiff on the basis of an award of damages in the amount of $160,000.
3. That judgment be entered in favour of the third plaintiff on the basis of an award of damages in the amount of $160,000.
4. I direct the plaintiffs to bring in Short Minutes of Order to give effect to these reasons for judgment.
I will hear the parties as to costs and any other ancillary orders.
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Decision last updated: 07 January 2014
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