Georgeff v SA Telecasters Ltd No. DCCIV-97-1485 Judgment No. D151
[1999] SADC 151
•30 November 1999
TONY ANASTAS GEORGEFF v S A TELECASTERS LTD
[1999] SADC 151
Judge Lunn
Civil
ACTION FOR DAMAGES FOR LIBEL
Background
The plaintiff and Kellie Georgeff married on 13 July 1985. There are two children of the marriage born on 29 May 1989 and 29 January 1992. The plaintiff had a major problem with gambling which produced financial difficulties for the couple and they separated in September 1992. They reconciled in January 1995. During that separation the plaintiff made voluntary payments of maintenance for the children and his wife took no action to compel him to pay any greater amounts. Upon the reconciliation the couple bought in joint names a home at Wynn Vale for which most of the purchase price was borrowed on a mortgage. Mrs Georgeff and the two children have resided in that house ever since. In November 1995 the plaintiff, who was working as a car salesman, suffered an injury at work and thereafter received income maintenance payments under the Workers Rehabilitation and Compensation Act. In the period until November 1997, which is the period directly relevant to the matters in issue here, he continued to receive such income maintenance payments, although for some period only supplementary to earnings for part time work which he was able to perform. His continued entitlements to such workers compensation payments were disputed from time to time by his employer’s insurer, VACC Insurance Worksafe (“VACC”), and on some occasions they were stopped for short periods, but up to November 1997 they were always resumed and back payments were made for weeks in which compensation had not been paid.
In about January 1996 the plaintiff and his wife again separated. The children remained with, and in the care of, Mrs Georgeff, but apart from one short period the plaintiff has taken them on access on every second weekend. After this separation Mrs Georgeff assumed responsibility for paying the mortgage payments of $252 per week, although the plaintiff continued to be also legally liable for them.
After this separation the plaintiff made some spasmodic payments to his wife for maintenance for the children, but she was not satisfied with their frequency or the amounts. By an application dated 7 March, but not apparently not finally lodged until 15 April 1996, Mrs Georgeff applied to the Child Support Agency (“the Agency”) for maintenance for the two children retrospective to 1 January 1996. Under the Commonwealth Child Support Assessment Act 1989 (‘the CSA”) the Agency, which operates in conjunction with the Australian Taxation Office, has power to collect from the employers of fathers 27% of their earnings less an exempt income amount for the maintenance of two children and to forward the money received to the custodial mother. In broad terms the Agency calculates the amount payable by the father as the relevant percentage of his estimate of his earnings for the current financial year, but, if when his tax return for that year is later lodged and assessed, it transpires that the percentage should have been calculated on a greater amount than the income estimated the Agency can recover from the father such additional amount as is properly payable on his actual income as assessed for taxation purposes plus interest and a penalty amount. The plaintiff put in estimates of his income at various times on which the Agency assessed the amount of child support which he was required to pay to it for his children. However, until at least 1998 his actual income was always far greater than these estimates. As his estimates were accepted by the Agency, the amounts of child support which were deducted from his earnings were substantially less than should have been paid if the relevant percentage had been applied to what he was actually receiving each month. In the primarily relevant period to November 1997 he delayed in lodging his income tax returns which meant that no additional assessment of child support was made based on the difference between his estimate for a financial year and what was his taxable income for that year. He contended that his low forward estimates of his income were bona fide because he had no assurance that his workers compensation income maintenance payments would continue, and, if they had ceased, he may well have been unemployed. By an application of 6 March 1997 Mrs Georgeff challenged the amount of child support payments then being made by the plaintiff to the Agency as being too low. On 20 May 1997 a Review Officer dismissed her application on the circumstances which he then found existed which included at that particular date the plaintiff’s income maintenance payments had been suspended and he was only on a Jobsearch Allowance. The Review Officer left the final amount to be paid to be sorted out after the tax return for the year had been filed.
On a date which was not stated in evidence, but which was in 1997, the plaintiff and his wife were divorced. There were proceedings for a matrimonial property settlement. From at least late 1996 there were unsuccessful negotiations for a matrimonial property settlement which largely centred on what benefit the plaintiff was to receive for transferring his half interest in the family home to his wife. Various credits for his arrears of child maintenance were contained in the offers and counter offers, but nothing was ever agreed.
Relations between the plaintiff and his wife had become very bitter and antagonistic. She had formed another relationship and there was friction between the plaintiff and her new boyfriend. A considerable amount of evidence was devoted to the history of the ongoing disputes and squabbles between them, but I do not intend to descend into those in these reasons as they are only marginally relevant to what I have to decide.
From January until August 1997 the plaintiff only paid $1,755 to the Agency for child support which is an average of $146 per month whereas on the assessments made in 1999 based on his income disclosed in his later tax return for that period he should have been paying in the vicinity of $1,000 per month. Mrs Georgeff became aware of his actual level of earnings and made numerous complaints about the inadequacy of the amounts which she was receiving, but to no avail. On 16 August 1997 she lodged another application for a review of the amounts payable, but that did not come on for hearing until 20 October 1997. On a date which is difficult to fix she telephoned Channel 7, which is a television station in Adelaide operated by the defendant, and invited it to investigate and publicise the inadequacy of the amounts of child support which she was then receiving from the plaintiff. On an uncertain date, about which I will make findings later, a reporter, Liz Kefford, and an unidentified cameraman and sound recordist, all from Channel 7, visited Mrs Georgeff at her home, filmed her at some length answering questions from Liz Kefford about her relationship with the plaintiff and her problems in receiving maintenance for her children from him and went through her papers. On the afternoon of Friday, 31 October 1997 Liz Kefford and another cameraman and a sound recordist, without warning, confronted the plaintiff outside his home and sought to have him answer questions on camera about his payments of child support, but he declined to have any interview on camera, although he spoke with Kefford privately about the matter
The broadcasts
Between the evening of Friday, 31 October 1997 and noon on Sunday, 2 November 1997 the defendant broadcast on Channel 7 on fifteen occasions a promotion for its “Today Tonight” programme (“the TV promotion”) using words as follows:
(ANNOUNCER) “On Today Tonight
(ANNOUNCER) He’s Adelaide’s Dead Beat Dad
(MRS GEORGEFF) He betrayed us in every way
(ANNOUNCER) He admits using the system
(REPORTER) Can I talk to you about your maintenance payments
(ANNOUNCER)........ And refuses to pay more maintenance for his children
(MRS GEORGEFF) Its a constant fight daily, just to survive”
On the early morning of Monday, 3 November 1997 the defendant caused to be broadcast twice on each of radio stations SAFM, Triple M and 5AAA and once on radio station 5AD FM an advertisement for its Today Tonight programme in the following terms:
“On Today Tonight Adelaide’s Dead beat dad
He admits using the system
He doesn’t want to help towards the girls
He refuses to pay maintenance for his children”
(“the radio advertisement”)
At about 6.30pm on Monday, 3 November 1997 in the course of its “Today Tonight” current affairs programme Channel 7 broadcast words with accompanying pictures, as follows:
“(HOST)...................... But first tonight to the vexed question of child maintenance. Whatever the fallout from a failed marriage there’s no argument that children should be the first priority and that they need to be looked after. Kelly Georgeff is one mother who says her life after marriage for her and her two children is a daily struggle and the system certainly hasn’t helped. But now after 2 years of reviews the system has finally agreed that she has been subject to hardship and that her former husband must pay more money than he has been paying to date. As Liz Kefford reports its a sadly familiar story in which no one really wins.
(MRS GEORGEFF) It’s a constant fight daily just to survive with the two girls.
..................................... Its definitely mean, its hurting the children because they’re the ones that go without.
(REPORTER) Excuse me Tony, can we talk to you about your maintenance payments
..................................... Its a sad fact of life that marriages break down and families fall apart
(MRS GEORGEFF) I had these big beliefs when I got married I wanted to be married and I wanted to stay married because my parents were divorced and I wanted the right thing for the girls
(REPORTER)............. When Kellie and Tony Georgeff’s nine year marriage broke up in 1995, the young mother of two was upset, but confident the couple could still be friends.
(MRS GEORGEFF) My mum kept saying to give him a second chance, after all he is their father and the girls deserve to have, you know, a two parent family
..................................... I’m gonna tickle your toes when you come through here
(REPORTER) Attempts at saving the marriage failed, and the couple divorced, Kelly stayed in the matrimonial home and is paying the mortgage, Tony moved out and now lives in a rented townhouse.
(MRS GEORGEFF)... To this date he’s still not being made to, to realise that he’s got two children, that this is not a game, that he should, as a parent, be helping towards their education
(REPORTER) Kelly maintains the level of support Tony has provided is inadequate. When the couple separated she tried to negotiate a private maintenance agreement, but when that broke down, she went to the Child Support Agency for help.
(MS BIRD)................. The child support scheme is designed to encourage parents to take responsibility for the on-going care of their children
(REPORTER) Child Support Services Assistant Commissioner Sheila Bird can’t comment on individual cases but says the amount people pay varies depending on their income and the number of children.
(MS BIRD)................. For example if you’re paying child support for one child then the percentage is 18 percent
(REPORTER) Tony Georgeff has been on WorkCover for most of the last two years and while he’s paid some maintenance its been both irregular and sufficiently low to be described by a Child Support Agency Review Board officer as creating hardship.
(MRS GEORGEFF)... He should be paying a lot more than what he is paying, at the moment I’m not really too sure because we still are not 100% sure of his earnings
(REPORTER) He receives a weekly benefit of $738 dollars, which is nearly thirty eight thousand dollars a year, yet for most of this year he told the Child Support Agency he was receiving just 15 thousand dollars per annum.
(MRS GEORGEFF)... He keeps declaring that he’s earning very limited income .....
(REPORTER) On an income of fifteen thousand dollars a year, Tony would have to pay 134 dollars a month, which is 31 dollars a week, or 15.50 for each child. His reasoning for such a low estimate is that he doesn’t know how long the WorkCover will continue at its current level and there may be further legal deductions that decrease his taxable income. So by maintaining $15,000 per annum as his estimate, his children miss out.
(MRS GEORGEFF)... I just feel that the system at the moment is protecting the people that, he’s in arrears of a maintenance on the $10 to $15,000 and they can’t take any more from his income because he’s declaring that he needs the money to survive.
(REPORTER) In fact the system finally caught up with Tony Georgeff after Kelly requested a child support review in a desperate attempt to have the monthly payments increased.
(MS BIRD)................. If a person hasn’t lodged a tax return then the Child Support Agency can undertake inquiries to find out how much income a person is receiving, and where that income is coming from
(REPORTER) The review officer found that Mr Georgeff is currently receiving significantly more than his estimate of income and that to continue would create hardship for Mrs Georgeff and the children. The report went on to say that it would be just and equitable and otherwise proper to fix the child support income at 38 thousand dollars for the current child support year.
(MRS GEORGEFF)... I don’t think I’m asking for anything, you know, that’s not fair
(REPORTER) Despite the opportunity Tony Georgeff chose not to speak on camera when we approached him. Off camera he said he had been paying some maintenance and showed us the paperwork to support his claim.
..................................... In response to written questions late this afternoon, Mr Georgeff said he accepted the review officer’s finding of $38,000, he also added he believed he’s provided his children with emotional support and security.
(MS BIRD)The scheme recognises that the administrative formula isn’t perfect in all cases
(HOST)....................... Always a difficult one.”
(“the TT’s Story”) It was estimated that about 150,000 viewers watched the “Today Tonight” programme on 3 November, but it was not proved that it was broadcast outside of South Australia.
Defamatory meanings
I now deal with the pleaded alleged meanings of the broadcasts. The pleaded meanings were confined to the natural and ordinary meaning of the words. (Some of the sequential subparagraph numbers below, which are those which appear in the Statement of Claim, are missing because they were struck out at an interlocutory stage.)
I find that the TV promotion had the following meanings:
12.1.......... The plaintiff had been a shiftless, uncaring and irresponsible father. I do not find that it was “since separation” as pleaded. “Dead beat” has a dictionary meaning of “a lazy or socially undesirable person” and “a vagrant”. It is clearly a derogatory term. The meaning here is not limited in its context to the plaintiff’s obligation as a father to pay maintenance his children. The words “He betrayed us in every way” extends it to all his parental obligations. The phrase is not limited to maintenance obligations by the succeeding words “He admits using the system”. Those words are not part of the same sentence in which “in every way” was said, and the two sentences were uttered by different people. While the balance of the promotion is limited to statements about maintenance obligations they are merely one instance of the betrayal “in every way”.
12.3The plaintiff had deliberately failed to provide money necessary for the support of his children. The use of “refuses to pay” implies that there is an alleged capacity, and not an inability, to pay proper maintenance.
12.5.......... The plaintiff had wrongfully refused to pay reasonable maintenance for his children. I do not accept that it was “in circumstances justifying a contempt” as was pleaded. For the reasons stated in the following subparagraph “wrongfully” means only immorally, and not dishonestly.
12.6The plaintiff had wrongfully manipulated the legal and administrative procedures intended to provide for maintenance of children of divorced parents. I do not find that there was a meaning that this was done dishonestly by the plaintiff, as was also pleaded. “Using the system” implies that the plaintiff was acting within the letter of the law although taking advantage of the nature of the system to avoid paying proper maintenance for his children. It is an allegation of using, but not of abusing, the system.
12.7.......... The plaintiff had taken advantage of the legal and administrative system to evade his proper responsibilities to support his children. There is no basis to imply that the system was “inefficient” as was pleaded. “Evade” here only imports immoral, and not illegal, conduct of the plaintiff.
12.8I reject this meaning which pleaded, “In respect of each of the meanings pleaded in paragraphs 12.1 to 12.7 the plaintiff was alleged to be the worst in Adelaide”. It turns on what is meant by “Adelaide’s Dead beat dad”. “Adelaide’s” here is used geographically. In its context here the import of “Adelaide’s Dead beat dad” is not restricted to the non payment of maintenance. It is not merely speaking of the extent to which he failed to fulfil his obligation to pay maintenance. The reference to “more maintenance” later in the promotion implies that he had paid some. Clearly the worst fathers are those who pay no maintenance, but he was not put into that category. While the phrase in question means that the plaintiff was a bad father, any such more restricted meaning of it along the lines raised by 12.8 does not take it any further than that already found in 12.1.
Each of the meanings which I have found above for the TV promotion is defamatory of the plaintiff. He is identified as the subject of the defamatory statements by his picture appearing twice in the TV promotion and in the case of viewers of the TV promotion who also later saw the TT Story by the clear correlation between the two.
In relation to the meanings of the radio advertisement pleaded most of them merely repeated the meanings alleged for the TV promotion, but incorrectly referred to them as being in paragraph 13 of the Statement of Claim whereas they were in paragraph 12. There are some significant differences in meanings from the TV promotion because the radio advertisement contained some statements which were not in the TV promotion and omitted some parts of the TV promotion. I find that on the pleadings the meanings of the radio advertisement were as follows:
15/12.1..... The plaintiff had been a shiftless, uncaring and irresponsible father. I do not find it to have been since separation as pleaded. Here this meaning is limited by its context to the plaintiff’s obligation as a father in paying maintenance and does not extend to his other parental obligations.
15/12.5, 12.6 and 12.7........ The findings are the same as for those subparagraphs in relation to the TV promotion.
15.3.......... The plaintiff refuses to pay maintenance for his children at all. There is no basis in the context to imply “extra” or “more”. In this it differs significantly from the TV promotion.
15/12.8I reject a meaning that in respect of the meanings for the radio advertisement set out above the plaintiff was the worst in Adelaide. In this context it is not clear that “Adelaide’s” is being used geographically. However, while a father who pays no maintenance could be the worst of such fathers in Adelaide there are likely to be within the individual circumstances of each such father other factors which would mean that one of them only would be categorised as the worst. There is nothing in the context here to imply that among the category of fathers who pay no maintenance the plaintiff was the worst of them. Any lesser meaning which might be properly attributed to 15/12.8 does not take the meaning beyond that already found in 15.3.
Each of these meanings of the radio advertisement is defamatory of the plaintiff. Although the plaintiff is not named or otherwise described in the radio advertisement, he was identified as the father referred to in the advertisement to listeners who accepted the invitation in the advertisement to watch the TT Story where he was both named and pictured: Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 98. There were also sufficient common denominators between the TV promotion and the radio advertisement for people who listened to the radio advertisement and who had also seen the TV promotion to identify the father mentioned in the radio advertisement as the father depicted in the TV promotion.
The pleaded defamatory meanings of the TT Story differed substantially from those alleged for the TV promotion and the radio advertisement. The parts of them which constituted the major sting of the alleged earlier libels were not repeated in the TT Story. The TT Story did not include the expression, “Adelaide’s Dead beat dad”, say that the plaintiff had “betrayed us in every way” or say that he had not paid any maintenance.
I find that the TT Story had the following meanings as pleaded:
17.1.......... Mrs Georgeff had been subject to hardship during two years of reviews by the Child Support Agency, but only in the sense of financial hardship and consequent difficulty for her in providing appropriately for the two children.
17.2I reject the meaning in this plea “that the plaintiff had chosen deliberately to hurt his children”. I find a lesser meaning that the plaintiff had undertaken a course of action which he should have realised would have hurt his children.
17.3.......... I reject the pleaded meaning “the plaintiff was playing games with his children in that the plaintiff was using his children in a manipulative fashion as pawns in a game with his wife over child support obligations.” It is based primarily on the passage in the TT Story where Mrs Georgeff said “To this day he is still not being made to, to realise that he’s got two children, that this is not a game, that he should, as a parent, be helping towards their education.” I accept that it has a lesser meaning that in his dealings with the Agency the plaintiff was playing a game involving his children which meant that he was not acting seriously or responsibly in fulfilling his moral obligations to maintain them.
17.4The plaintiff was concealing his true earnings in order to avoid his child support obligations.
17.6.......... The plaintiff had committed breaches of his child support obligations over a two year period and that the system had caught up with him. I do not find the meaning pleaded that “the system had finally caught up with him.”
17.7The Child Support Review Officer had assessed the plaintiff’s child support payments over the past two years and found that they had created hardship for his children thereby inferring that the plaintiff had failed to provide adequately for his children and caused them financial hardship over a two year period.
17.8.......... I reject the pleaded meaning “the plaintiff’s statement that he had provided emotional support to his children was contemptible.” Nothing in the relevant words, their expression or context conveys this meaning. The defendant was merely repeating an assertion made by the plaintiff in his response to the defendant’s questions so as at least in part to put his side of the story.
17.9The plaintiff had refused to meet his child support obligations.
Each of these meanings which I have found for the TT Story is defamatory of the plaintiff. He was clearly identified by both name and pictures in the TT Story as the subject of these defamatory statements.
The witnesses
I did not find the plaintiff to be a wholly impressive and reliable witness. He has an overriding hatred and animosity for his former wife which has coloured his perception of much of what occurred and has motivated him to act to her detriment. He was highly incensed at the way in which his wife had obtained the benefit of his 1995/6 tax refund, he had been involved in conflict with her new boyfriend and he had probably been harassing her in various ways. While he was prepared to concede that some of his conduct had been discreditable, which in the circumstances of it was almost inevitable, he sought to obtain vindication from this Court for his conduct in not paying more child maintenance than he did.
I also do not find Mrs Georgeff to have been an entirely reliable witness in some parts of her evidence. Her perception of events was also coloured by a hatred for her former husband and she also sought vindication for the injustices which she perceived that she had suffered as a result of his conduct. She had told his employer that his compensation claim was bogus and she had made threats of harm to him and to Joe Ciampa. While in the video films, and generally in the witness box, she presented in a reasonably calm and dispassionate way, underneath she was very angry and bitter. In the light of the history of the matter she probably has good reason for such anger and bitterness. As she conceded, she was not good at remembering dates and working with figures and she had considerable difficulty in putting various related events in their proper sequence. She was reasonably intelligent.
I accept the evidence of the plaintiff’s friend, Joseph Ciampa, where it is in conflict with that of the other witnesses, although he was mistaken in believing that in one incident Mrs Georgeff had been stabbed. I do not accept the evidence of the defendant cameraman, Mr Savic, where it conflicts with that of Mr Ciampa. Mr Savic had no real recollection of what was said at the plaintiff’s home on 31 October 1997. Mr Ciampa’s version of the conversation is quite plausible.
The defendant called no witnesses other than Mrs Georgeff and its cameraman, Savic. It opened on calling the plaintiff’s former employer, but desisted after I ruled that his evidence would be inadmissible as it related only to collateral issues on the plaintiff’s credit. Of considerable significance is that the defendant did not call its reporter, Liz Kefford, its cameraman or its audio assistant who attended at Mrs Georgeff’s home, its audio assistant who attended at the plaintiff’s home, its employees who had spoken to Mrs Georgeff on the telephone and its staff who compiled and arranged the broadcasts of the TV promotion, the radio advertisement and the TT Story. No explanation was proffered as to why any of these persons might have been unavailable. These people were clearly in the camp of the defendant and available to it. From the defendant’s discovery there were almost no documents relating to its dealings with Mrs Georgeff and the preparation and publication of the TT Story. Insofar as I need to draw inferences from the evidence which is before me about matters upon which it appears that any of these persons could have given evidence, I conclude in what inference I draw that the evidence of such persons would not have supported the case of the defendant: Spence v Demasi (1988) 48 SASR 536 at 547-8.
Justification
The defendant pleaded in paragraph 17A of the Defence that the meanings of the words published, insofar as they bore the meanings which I have found and to the extent to which they were defamatory of the plaintiff, were “true in substance and in fact.” It is convenient to deal with this plea on the various meanings by looking at some separately and some in groups, and in the following order:
(1)... 17.1. That Mrs Georgeff had been subject to hardship during two years of reviews by the Child Support Agency.
The sting of this libel is that she had been subject to financial hardship in providing appropriately for the two children because the plaintiff had not paid her sufficient child maintenance in that period. Although a two year period is referred to it is to be viewed as the period of slightly less than two years since the separation.
Mrs Georgeff said that she suffered financial hardship in this period and I accept that. Her income in the period was principally only social security benefits and the child support which she obtained from the plaintiff. She also had some small income from occasional casual employment. Although the plaintiff suggested that she was receiving financial assistance from her boyfriend Christopher Legge, it was not pressed in cross examination and I accept her denial about it. From this relatively meagre income she had to pay $252 per week in mortgage repayments so that she could keep the home for the benefit of herself and the two children. Although she fell substantially into arrears with these payments, by about mid 1997 she had brought them up to date with financial assistance from her mother after threats of a mortgagee’s sale. These mortgage payments represented a disproportionately large expenditure on accommodation when compared with her total income, and left very little for other living expenses. The children had been attending a private Catholic school before the separation and continued to do so thereafter. Mrs Georgeff had to meet this expense out of her income although the school extended her considerable credit. She was just able to make ends meet through receiving considerable financial assistance from her mother, but there was no suggestion that all of that assistance would have been given if appropriate maintenance had been paid by the plaintiff. The plaintiff contended that in meeting these expenses his wife should have had resort to about $12,000 of joint moneys which she had in her bank account at separation. About half of this amount was spent immediately on a car which Mrs Georgeff needed for the care of the children as the plaintiff had taken the family car when he left. The balance of this money was spent in 1996 on improvements to the house. This may not have been entirely reasonable in the circumstances, but there was also no good reason why Mrs Georgeff should have applied that money towards support of the children in lieu of proper maintenance payments from the plaintiff.
The plaintiff’s counsel contended that Mrs Georgeff had got by, and had made ends meet, and thus that there was no real hardship for her. I find that there was real hardship for her in her struggles to cope financially for herself and the two children on a very limited weekly income. There was also hardship in that if the plaintiff had been paying an appropriate amount of maintenance, which I will deal with below, there would have been more money available to her to pay for various extras for the two children, which could reasonably have been expected to have been provided by a parent earning the income which the plaintiff was earning, and she and the two children suffered additional hardship by then being deprived of those extras.
I find the defendant has justified the defamatory meaning in 17.1.
17.2. That the plaintiff had undertaken a course of action which he should have realised would have hurt his children.
I accept that the plaintiff loves his children and would not have done anything which would have directly hurt them. However, his failure to pay more maintenance did indirectly hurt them for the reasons which I have set out in (1) above. He should well have realised this, but his vendetta with his wife blurred his perception of what he was actually doing to his children. I find the defendant has justified the meaning in 17.2.
17.3. That in his dealings with the Agency the plaintiff was playing a game involving his children which meant that he was not acting seriously or responsibly in fulfilling his moral obligations to maintain them.
The plaintiff’s dealings with the Agency were not only directed towards minimising his immediate cash outlay for child support, but they were also a tactical ploy in his protracted negotiations about the matrimonial property settlement. By starving his wife of immediate cash he was attempting to pressure her into accepting terms of settlement which she might not otherwise have accepted. He saw this as a game which he desperately wanted to win. He so described it to his wife. He also regarded, and probably justifiably, that a number of his wife’s actions were part of a game which she was playing and in which she was attempting to pressurise him into a settlement of the property dispute which would be disadvantageous for him.
I find that the sting of the libel in 17.3 has been justified in that in paying the inadequate amount of maintenance which he was paying the plaintiff was not showing proper regard for the current welfare of his children and was not acting seriously or responsibly in fulfilling his moral obligation to provide proper maintenance for them.
12.3, 12.5, 15/12.5 and 17.9. These are all to the effect that the plaintiff deliberately failed to pay reasonable maintenance for his children.
The plaintiff’s obligation being dealt with here is a moral one which is accepted by the community at large that a father is to apply a reasonable part of his current income for the current support of his infant children. It is a moral obligation which is over and above the legal obligation which is contained in the CSA, although it is repeated in s3(1) of that Act. The mere fact that the plaintiff may have been conducting himself within the letter of the legislation does not mean that he was therefore fulfilling his moral obligation to maintain his children. The legislation provides a means of compelling parents who will not voluntarily pay proper amounts of maintenance to do so, but, if parents are consistently fulfilling their moral obligations to maintain their children, it would be unusual for there to be need to resort to the Agency. Any implied acceptance by the Agency of the extent of the plaintiff’s payments does not mean that the plaintiff had necessarily fulfilled his moral obligation to pay maintenance.
The assessment of the proper amount of maintenance which a non-custodial parent should pay to the custodial parent can be difficult to assess as it will depend upon a number of factors which will differ from case to case. Under the CSA the amount payable by the plaintiff was 27% of his taxable income less the exempt income amount. No one in the trial suggested that this was not an appropriate rate of maintenance for him to pay. I accept it as being the appropriate rate. This is not a case which is complicated by a father having more dependents than he can afford to support. Even if it was out a few percent either way, it would not make any difference to the conclusions which I reach. The central issue here is whether the plaintiff could properly defer his obligations to pay much of the maintenance for a substantial time until after his tax return had been filed and assessed.
The moral obligation of non custodial parents to pay maintenance extends to paying immediately out of the income which they receive the appropriate proportion to the custodian of the children for their maintenance. If money is in the hands of the non custodial parent, there is usually no excuse for not handing it over immediately, and particularly where the custodial parent has substantial immediate financial obligations in respect of the children. Thus after the separation on each occasion when the plaintiff received a payment of either wages or compensation he was morally obliged immediately to pay over 27% of it less the exempt income amount to Mrs Georgeff as maintenance for the children. From 27 November 1995 until about 7 October 1996 he received $910 per week. From 8 October 1996 until at least 1998 he received $738 per week. On some occasions his compensation payments were suspended for some weeks and he had to obtain social security payments in the interim, but within a few weeks the compensation payments were reinstated and he received back payments to make up for the weeks in which he had not received the compensation. While the suspensions of the payments may have justified a delay in the payment of maintenance until the back payments were received, the proper amount for maintenance should have been paid by him out of the back pay as soon as it was received. There is no reason why the plaintiff should not have paid 27% of the income he received in that period less the exempt income amount as maintenance for his children. While he had other financial obligations they were not such as would have prevented him from paying such amounts for maintenance. In only paying much lesser amounts in that period he was continually in gross breach of his moral obligation to maintain his children.
In explaining his conduct the plaintiff sought to hide behind the technicalities of the Child Support system under the CSA. However, that is beside the point in the fulfilment of his moral obligation. The fact was that he had the necessary money but he applied it for purposes other than the proper maintenance of his children. He had the capacity to pay the proper amount for maintenance, but he chose not to do so.
I find that the defendant has justified each of the meanings in 12.3, 12.5, 15/12.5 and 17.9.
17.6. That the plaintiff had committed breaches of his child support obligations over a two year period and that the system had caught up with him.
I repeat what I have said in (4) above. There is an additional issue here of whether the breaches were over a two year period. The two years is to be viewed liberally as meaning from the separation in January 1995 until the TT Story on 3 November 1997. I reject the plaintiff’s contention that with his wife’s agreement the sum of about $12,000 of joint moneys in the wife’s bank accounts at the time of separation, or his half of it, was to be appropriated against his obligations to pay child maintenance. This contention was also rejected by a review officer in March 1997. The evidence of how much maintenance the plaintiff actually paid in the first half of 1996 is unsatisfactory. He certainly paid some. Mrs Georgeff did not produce her bank statements which might have disclosed the payments, but the plaintiff did not take the proper procedures to compel her to do so. In her initial application to the Agency Mrs Georgeff falsely stated that she had not received any maintenance before 7 March 1996. The circumstances in which she agreed in August 1996 to the plaintiff getting a partial repayment of his tax refund for the previous financial year which had been appropriated by the Agency strongly suggests that he had previously paid more than his wife would now admit. However, on the whole of the evidence I am satisfied that his payments, such as they might have been, from January 1996 fell substantially short of 27% of his then taxable income less the exempt income amount. Accordingly, I find that he had committed breaches of his child support obligations over the whole of the period referred to.
The review hearing on 20 October 1997 found that his income for the purpose of the calculation of child support for the 1997/98 child support year should be fixed at $38,000 and not at $15,000, as he had most recently estimated and had argued for. The effect of this finding was that, subject to any further review if his circumstances changed, the Agency would recover child support from him for that 1997/98 year on a basis which was reasonably commensurate to his actual income at the time. In colloquial terms this meant “that the system had caught up with him.” The defendant has justified the meaning in 17.6.
12.7, 15/12.6 and 15/12.7. These are all to the effect that the plaintiff had wrongfully manipulated and taken advantage of the legal and administrative system and procedures to evade his proper responsibilities to support his children.
In about July 1996 the plaintiff estimated his income to the Agency to be $20,000 for the 1996/97 financial year. He took no steps to increase that estimate due to any change in his circumstances until on about 2 May 1997 he gave an estimate of $24,000 to the Agency for his 1996/97 income. In June 1997 he gave an estimate to the Agency that his income for the 1997/98 financial year would be $10,000. He did not increase that in the light of any changed circumstances until on 10 September 1997 he gave a revised estimate to the Agency that his income was to be $15,000 which estimate he maintained up to and including on the review hearing on 20 October 1997. He claimed at the time at which he made these estimates he was always uncertain about his future income because he feared that VACC might successfully challenge his entitlement to compensation. He pleaded that he was on notice that the income from VACC was provisional and repayable in the event that he was unsuccessful in his WorkCover claim. While VACC did assert this in letters it was only applicable for relatively short periods before it was determined under the Workers Rehabilitation and Compensation Act that the entitlements should continue. He was never at risk of having to pay back a substantial sum of compensation to which he was not entitled, and in any event there was no reason why any such liability should have taken priority over his child support payments. This excuse was put forward regularly by the plaintiff as a stratagem to minimise his current liability for child support.
Also by mid 1997 he was arguing that he could expect a lump sum redemption of his compensation entitlement in about November 1997 and once this occurred his income for the purposes of the CSA would substantially diminish. (However, while such a lump sum redemption might have reduced his liabilities under the CSA his moral obligation to apply a significant part of it for child maintenance should have offset this.) The plaintiff expected that when a revised assessment of the amount of child support payable under the CSA was made after he had filed his income tax return for the relevant financial years he would be able to bargain off with his wife the resulting substantial arrears in the ultimate property settlement. Part of his stratagem was to pay as little as possible to his wife, albeit with the expectation that he would have to pay more later, so that she would not have enough money available to employ a lawyer to fight for the matrimonial property settlement. Thus he delayed for as long as possible filing his taxation returns to postpone the further assessments of child support which would become payable once those returns were assessed and which would show him having earned far more than he had estimated. His 1996/97 return was dated 1 July 1998, although the group certificate with it was dated 10 July 1997. The lodgement of this return resulted in additional assessments totalling $6,132 being raised on 9 September 1998 plus a penalty sum of $613 for the incorrect estimate in the 1996/97 year. In these ways the plaintiff used and manipulated the procedures of the Agency to avoid being legally compelled to pay the amounts of maintenance which he should have been paying. The system was not as efficient as it should have been in ensuring that the appropriate part of fathers’ incomes were appropriated to child support as soon as the incomes were received and the plaintiff exploited these loopholes. I need not go into whether this was lawful. All that has been alleged is that it was immoral. The plaintiff had no real expectation that his income maintenance, or a capital redemption sum in lieu of it, would not continue for a substantial time into the future. He knew that even if his compensation entitlements were terminated and he became unemployed he could then apply for a review under the CSA to reduce his liability for child maintenance to an amount which he could afford to pay on what he was then actually receiving. I find that in the eyes of ordinary right-thinking members of the community what he did in dealing with the Agency from July 1996 until November 1997 amounted to an immoral and wrongful use of the system operated by the Agency. The defendant has justified the imputations in each of paragraphs 12.6, 12.7, 15/12.6 and 15/12.7.
17.4. That the plaintiff was concealing his true earnings in order to avoid his child support obligations.
The plaintiff was dismissed from his employment with Adrian Brien Ford in June 1996. I accept the evidence of Mrs Georgeff that the plaintiff then told her that he was thereafter only in receipt of unemployment benefits and was thus unable to pay any greater child maintenance. However, shortly after his dismissal his workers compensation payments did resume, and indeed were backdated to when he had been dismissed. For some time he concealed from his wife and the Agency that he was continuing to receive substantial income maintenance payments. It was not until sometime later that the wife fortuitously discovered that he was receiving them and reported this to the Agency which in turn apparently verified it from VACC. I find that for this period the plaintiff did conceal his true earnings in order to avoid having to pay the appropriate amount of child support on those earnings. Thus the imputation in 17.4 is justified. The allegations in the TT Story were not specific about when or how the concealment occurred, but what is proved is sufficient to justify the sting of the libel.
15.3. That the plaintiff refuses to pay maintenance for his children at all.
The defendant has failed to justify this allegation. The plaintiff had paid some child maintenance for most months in 1997 up to and including October. He had never stated that he would not pay what he was legally required to pay by the Agency.
12.01. Insofar as it may be a statement of fact the meaning in 12.1 that the plaintiff had been a shiftless, uncaring and irresponsible father has not been proved to be justified. While it would have been justified if it had been clearly limited by its context to the failure to pay sufficient maintenance, the sting of the libel is far wider and encompasses breaches of all of the plaintiff'’ parental responsibilities. There was no justification either pleaded or proved in respect of breaches of parental obligations other than the payment of insufficient maintenance. I find, and Mrs Georgeff never disputed, that in respects other than paying maintenance the plaintiff was generally a caring and responsible father.
(10)15/12.1. Insofar as the meaning in 15/12.1 may be a statement of fact that the plaintiff had been a shiftless, uncaring and irresponsible father that also has not been justified, although for different reasons from those in (9). Here the meaning is limited by its context to the plaintiff’s obligation as a father in not paying maintenance and does not extend to his other parental obligations. The sting of this libel is that he was not paying any maintenance for his children which is a significantly different allegation from one that he was paying some, but not enough, maintenance. Although the defendant pleaded justification in respect of this meaning, grounds for such justification were not contained in either its particulars or in the evidence. Indeed the particulars, and the evidence, both clearly showed that the plaintiff had paid, and was continuing to pay, some sums for child maintenance.
Other defences
By paragraphs 17C and 17E of the Defence it was pleaded that the references to “Adelaide’s Dead beat dad” constituted fair comment upon a matter of public interest. Insofar as that phrase was comment its use could not attract any defence of fair comment because it was not based on facts which were truly stated: Peterson v Advertiser Newspapers (1995) 64 SASR 152 at 193. In respect of the TV promotion the untrue assertion “He betrayed us in every way” defeats any defence of fair comment for the use there of “He’s Adelaide’s Dead beat dad”. In respect of the radio advertisement the untrue assertion that “He refuses to pay maintenance for his children” defeats any defence of fair comment for the use there of “Adelaide’s Dead beat dad”.
A defence of qualified privilege was pleaded, but the defendant’s counsel did not address upon it. There was no sufficient reciprocity of interest between the defendant and the South Australian public in the maintenance dispute between the plaintiff and his wife which could found any defence of qualified privilege.
On the findings which I have made it is not necessary to go into the plaintiff’s replication that Mrs Georgeff and the defendant were each actuated by malice. I make no findings on those topics.
The end result is that the plaintiff has succeeded in establishing his right to damages for libel in respect of the defendant’s publications of the TV promotion and the radio advertisement, but only on the defamatory meanings which I have found in 12.1, 15/12.1 and 15.3, and not in respect of the other meanings of those publications. The plaintiff has failed to establish any cause of action in respect of the TT Story.
Trespass
I accept the plaintiff’s evidence that when he allowed the defendant’s reporter Kefford into his home on the afternoon of 31 October it was on terms to which Kefford agreed that she would talk to him on an individual basis in the house without him being on camera “or anything like that”. The meaning and intent of this agreement was that what he said to her in the house would not be recorded by any means which might later be able to be broadcast as direct evidence of what he had then said. In breach of that term, and without the knowledge or consent of the plaintiff, Kefford concealed in her handbag some device or devices which both took film inside the house and recorded the conversation between her and the plaintiff in his house. The legal effect of this breach by Kefford was to revoke her licence to enter the house and to make her a trespasser: Lincoln Hunt v Willesee (1986) 4 NSWLR 457 at 460. Kefford committed this trespass in the course of her employment by the defendant. The plaintiff did not seek other than nominal damages for this trespass. I award $10 damages for it.
Assessment of damages for libel
The passage in the TV promotion where Mrs Georgeff is seen saying “He betrayed us in every way” was a snippet taken from the filmed interview by the reporter Kefford with Mrs Georgeff which lasted for over half an hour. It is this snippet which gives much of the sting to the libellous meaning in 12.1. However, in its original context in the interview it had a somewhat different meaning from that which it obtained from the context in which it was placed in the TV promotion.
Early in their marriage the plaintiff and his wife had jointly bought a block of land at Hope Valley on which they ultimately intended to build a home. They significantly reduced the mortgage used to buy the block and acquired a substantial equity in it. However, after they bought an established house upon their reconciliation in January 1995 they decided to sell the block. On about 5 May 1995 the plaintiff, without the consent or knowledge of his wife, obtained the cheque from the broker handling the sale for the nett amount payable of $27,309 and banked it into their joint bank account. Over the next fortnight, without the knowledge of his wife, the plaintiff withdrew sums totalling about $6,000 from this joint account and lost it all in gambling at the Casino. When his wife discovered what had occurred on 19 May 1995 she immediately withdrew the balance of $21,600 from the account and placed it in another bank account in her own name where the plaintiff could not touch it. She was very angry and upset at what the plaintiff had done with their joint money because it was a recurrence of his secretive, compulsive gambling which had led to the earlier separation in 1992. This incident was also a major cause of the second separation which occurred at about the end of 1995.
Early in her filmed interview with Mrs Georgeff Liz Kefford asked her questions about what had led to the breakdown of the marriage. In answer Mrs Georgeff told her of how the plaintiff had misappropriated part of the proceeds of the sale of the block for his gambling. In response to this Kefford asked a question, “You must have been beside yourself with anger” and Mrs Georgeff responded:
“I was, I’d become used to it, and by the end of this it was enough for me that I was like very disillusioned with Tony and I felt like he had betrayed us in every way by constantly taking the money, spending it. He’d always apologised but he never made up for the money that he spent and I felt that it was always for selfish reasons, he never really sought of spoilt the girls or his children with it or it was just for his own use in the Casino.” (The snippet which appeared in the TV promotion is underlined.)
In its context in the interview the words in question have nothing to do with the payment of maintenance after separation. They relate to the causes of the break up of the marriage. They did not mean in the interview that objectively the plaintiff had betrayed his wife and children in every way, but that subjectively that was the feeling which his wife had when she discovered that he had misappropriated the $6,000. In its context in the interview the snippet in question was not describing the ways in which the plaintiff had betrayed his family, but rather it was an inelegant expression of the extent of his betrayal of his wife’s trust in him in financial matters and her consequent disillusionment with him.
It is probable that the defendant chose to include this snippet of the interview in the TV promotion because of its extreme terms and its likely emotive effect on viewers. It must have realised that by removing the snippet from its context in the interview and giving it a significantly different context in the TV promotion it was substantially changing its import and meaning to the detriment of the plaintiff. It also must have realised that by including the snippet in the context of the TV promotion it was disparaging the plaintiff as a father in ways which were untrue.
From the time of the filmed interview with Mrs Georgeff until the radio advertisements were broadcast the defendant must have known that the assertion in them, “He refuses to pay maintenance for his children”, was patently untrue. At the time of the filmed interview with Mrs Georgeff, Liz Kefford had seen papers which showed her that he was paying some maintenance. On 31 October the plaintiff himself had told her that he was paying some maintenance. The TV promotion stated it correctly that he “refuses to pay more maintenance”.
The defendant chose not to adduce evidence which must have been available to it to explain why “more” was used correctly in the TV promotion, but was omitted from the radio advertisement. There is some evidence from which I can infer that the defendant was seeking to sensationalise the matter and to unduly disparage the plaintiff presumably to obtain greater viewer interest in the story. Towards the end of the filmed interview with Mrs Georgeff the reporter Kefford asked a question:
“You are obviously not alone in this situation. What would you say to the Tony’s of the world especially the ones who are seemingly earning $900 per week and yet won’t cough up one cent?”
At the time she asked that question Kefford knew that the plaintiff was not in the category of fathers who did not pay any maintenance. Why she should have misstated the position in this question was not explained in evidence, but I infer that it was an attempt to depict the plaintiff as being a worse person than she knew he was. I infer that the defendant caused the radio advertisement to be worded in the way in which it was by omitting “more” to make it appear that the plaintiff had no regard at all for his maintenance obligations and thus to make the proposed TT Story more sensational and interesting in the eyes of potential viewers.
The defendant was somewhat reckless in the way in which it went about preparing the TT Story and in broadcasting the TV promotions and the radio advertisements. On the evidence it is difficult to place when the filmed interview with Mrs Georgeff occurred. The defendant did not put any evidence forward about it from its employees who were involved in it to clarify the point. As the hearing before the Review Panel on 20 October was not mentioned in the interview I infer that it must have been before 20 October, and as there was no mention of even such a hearing being pending, it is quite possible it was somewhat earlier in October before Mrs Georgeff had received notice of that hearing. Mrs Georgeff claimed that she had given the plaintiff’s address to the defendant at about that time. Although the plaintiff denied that she then knew it, I am inclined to accept her evidence about it in the absence of any contradictory evidence from the defendant’s employees. For some unexplained reason it then took the defendant until the afternoon of Friday 31 October to approach the plaintiff about the matter. The TV promotion was either prepared, or at least finalised, within a few hours of the defendant’s team leaving the plaintiff’s home. From the cameraman’s statement at the plaintiff’s house on 31 October to Joe Ciampa it is clear that the defendant intended to broadcast that story no matter what the plaintiff said on that day. I infer that some version of the TT Story had already been compiled, and probably the title “Adelaide’s Dead beat dad” had by then been given to it. On Sunday 2 November the plaintiff’s solicitors sent a letter to the defendant claiming that Mrs Georgeff was actuated by malice in her allegations which must have put it on notice that it should be careful in what it published about the matter. At some time on Monday 3 November the defendant’s solicitors sent a fax to the plaintiff’s solicitors which stated:
“Our client is continuing to gather information for inclusion in the story which it has promoted for its Today Tonight programme over the past few days. No story has yet been compiled.”
From this I infer that the defendant prepared and published both the TV promotion and the radio advertisement before it had completed its researches for the TT Story and before the contents of that story had been finalised. From the fact that much of what appeared in the TV promotion and the radio advertisement did not appear in the TT Story which was broadcast, I infer that the defendant in preparing the TT Story must have realised that these matters were defamatory and could not be justified. Reasonable prudence would indicate that no TV promotions, or radio advertisements should have been prepared or broadcast until the TT Story had been fully researched and prepared.
Although by the time that the TT Story went to air on the evening of 3 November the defendant must have known that much of what had already been broadcast about the plaintiff in the TV promotion and the radio advertisement was defamatory and could not be justified, it did not take the opportunity in the TT Story to withdraw what had been falsely asserted in the TV promotion and the radio advertisement. Presumably a substantial number of the 150,000 viewers of the TT Story had seen the TV promotion and/or heard the radio advertisement, and with some that would have been why they were watching the TT Story, particularly if they knew the plaintiff and had recognised him from the TV promotion. Those viewers may not have appreciated that the expression “Adelaide’s Dead beat dad” was not used in the TT Story, and even if they did notice its omission, they may not have appreciated its significance. While the snippet from the TV promotion “He betrayed us in every way” was not repeated in the TT Story viewers would not have regarded the statement near the end of the TT story, “(the plaintiff) also added he believed he had provided his children with emotional support and security”, as a contradiction of it because they may well have thought that it was another topic on which the warring couple were telling different stories.
The defendant has never withdrawn or apologised for the actionable defamation. In its Defence it denied all of the alleged defamatory meanings and pleaded justification and/or fair comment for all pleaded meanings that might have been defamatory. As mentioned above the particulars of justification did not encompass most of the defamatory meanings which I have found.
The plaintiff has not established any economic loss or special damages as a result of the actionable libels. Any breach by the defendant of the Listening Devices Act 1972 is irrelevant to the issue of damages.
The plaintiff was distressed and outraged at the publication of the libels. While to some extent this was attributable to parts of the publications which I have found are not actionable, it was significantly due to the actionable libels, and in particular to the derogatory label of ‘Adelaide’s Dead beat dad” in the TV promotion and the radio advertisement. In respect of the actionable defamatory meanings he is entitled to a sufficient award of damages to be a public vindication for him of the baseless allegations contained in them. I find for the reasons set out above that the defendant’s conduct in publishing the actionable libels was improper, unjustifiable and lacking in bona fides and thus the plaintiff is entitled to a substantive component for aggravated damages in his award of compensatory damages. I assess the compensatory damages at $10,000.
In respect of its publications of the actionable defamations the defendant for the reasons set out above acted with a conscious and contumelious disregard for the plaintiff’s rights. Thus in addition to the compensatory damages there is to be an award of exemplary damages, which I fix at $5,000, to punish the defendant for this conduct.
The total damages awarded to the plaintiff are $15,010. The plaintiff is also entitled to interest under Section 38 of the District Court Act on the amount of his judgment at the non-commercial rate of 4% per annum from 3 November 1997 until judgment. A lump sum in lieu of such interest is fixed at $1,240. There will be judgment for the plaintiff for $16,250.
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